United States v. Guerrero

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 24, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41297
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL GUERRERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-172-3
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Before GARZA, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Manuel Guerrero appeals the sentence imposed following
his guilty-plea conviction for possession with intent to
distribute more than 100 kilograms of marijuana. He argues that
the district court erred in imposing his sentence based on the
mandatory United States Sentencing Guidelines scheme held
unconstitutional in United States v. Booker, 125 S. Ct. 738
(2005). Because the Government explicitly does not rely on the
appeal waiver, we do not enforce it. United States v. Rhodes,

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No. 03-41297
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253 F.3d 800, 804 (5th Cir. 2001). Because Guerrero did not
raise this issue in the district court, review is limited to
plain error. See United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005), petition for cert. filed, No. 04-9517 (U.S. Mar. 31,
2005). The district court’s application of the mandatory
Guidelines sentencing scheme is error that is plain. Id.
However, Guerrero has not met his burden to establish that the
error affected his substantial rights as he has not shown that
the sentencing judge would have reached a significantly different
result under an advisory sentencing scheme rather than a
mandatory one. Id. at 521. Therefore, Guerrero has not shown
that the district court’s imposition of his sentence constituted
reversible plain error. Accordingly, Guerrero’s sentence is
AFFIRMED.

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