United States v. Garcia-Beltran

United States Court of Appeals
Fifth Circuit
F I L E D
July 1, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-30203
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID GARCIA-BELTRAN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 1:03-CR-10010-1
______________________________

-- 1 of 3 --

2
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
This court affirmed David Garcia-Beltran’s
conviction and sentence. United States v.
Garcia-Beltran, 111 Fed. Appx. 279 (5th Cir.
2004) (per curiam).1 The Supreme Court va-
cated and remanded for further consideration
in light of United States v. Booker, 125 S. Ct.
738 (2005). Garcia-Beltran v. United States,
125 S. Ct. 1346 (2005). We requested and
received supplemental letter briefs addressing
the impact of Booker.2
Garcia-Beltran did not raise any sentencing
issues in his opening brief, but his counsel sub-
mitted a letter to this court promptly after the
Supreme Court had decided Blakely v. Wash-
ington, 542 U.S. 296 (2004). Garcia-Beltran
claimed there was plain error in his sentencing
under the logic of Blakely, because his sen-
tence (to which he did not object in the district
court) was enhanced by four levels under
U.S.S.G. § 2A2.2(b)(3)(B) by a finding not
made by the jury, to-wit, that the victim had
received serious bodily injury. Garcia-Beltran
was sentenced to 96 months’ imprisonment,
but without the enhancement his guideline
range would have been 70-87 months.
We agree with the government that the
plain error standard of review applies because
Garcia-Beltran did not preserve a Sixth
Amendment error. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005)
(No. 04-9517). “An appellate court may not
correct an error the defendant failed to raise in
the district court unless there is ‘(1) error,
(2) that is plain, and (3) that affects substantial
rights.’” Id. (quoting United States v. Cotton,
535 U.S. 625, 631 (2002)).
Assuming there is plain error under Booker,
the third prong of the plain-error test requires,
under Mares, that “the defendant rather than
the government bears the burden of persuasion
with respect to prejudice.” Mares, 402 F.3d at
521 (citing United States v. Olano, 507 U.S.
725, 734 (1993)). To show that his substantial
rights are affected, Garcia-Beltran would have
to “point[] to . . . evidence in the record sug-
gesting that the district court would have im-
posed a lesser sentence under an advisory
guidelines system.” United States v. Taylor,
409 F.3d 675, 677 (5th Cir. 2005) (per
curiam) (citations omitted). In other words,
“the pertinent question is whether [the de-
fendant] demonstrated that the sentencing
judgeSSsentencing under an advisory scheme
rather than a mandatory oneSSwould have
reached a significantly different result.”
Mares, 402 F.3d at 521.
In his supplemental letter brief on remand,
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 In addition to affirming the conviction and
sentence, we remanded for a technical correction
in the judgment.
2 Garcia-Beltran was represented by counsel
until the opinion was issued, whereupon counsel
obtained leave of this court to withdraw as counsel.
Garcia-Beltran filed his certiorari petition pro se
and continues to represent himself at this time.

-- 2 of 3 --

3
Garcia-Beltran has made no effort to satisfy
this burden. Thus, he has not shown that the
error affected his substantial rights. As was
true for the defendant in Mares, because
Garcia-Beltran has not demonstrated that the
record establishes “what the trial judge would
have done had the Guidelines been advisory,”
Mares, 402 F.3d at 522, he has not “carr[ied]
his burden of demonstrating that the result
would have likely been different had the judge
been sentencing under the Booker advisory
regime rather than the pre-Booker mandatory
regime.” Id. Garcia-Beltran has not shown
that “with a probability sufficient to undermine
confidence in the outcome, that if the judge
had sentenced him under an advisory sentenc-
ing regime rather than a mandatory one, he
would have received a lesser sentence.”
United States v. Infante, 404 F.3d 376, 395
(5th Cir. 2005).
The judgment of conviction is AFFIRMED
for the reasons stated in our initial opinion.
For the reasons set forth in this opinion on
remand, t he judgment of sentence is also
AFFIRMED.

-- 3 of 3 --