Conference Calendar UNITED STATES OF AMERICA v. Humberto Lopez-Cruz

* 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this opinion should not be published and is not precedent except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
August 19, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40558
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
HUMBERTO LOPEZ-CRUZ
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-44-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
On December 17, 2004, in an unpublished opinion, this court
affirmed the sentence of Humberto Lopez-Cruz. United States v.
Lopez-Cruz, 115 Fed. Appx. 732 (5th Cir. 2004). The Supreme
Court has vacated and remanded for further consideration in light
of United States v. Booker, 125 S. Ct. 738 (2005). We requested
and received supplemental letter briefs addressing the impact of
Booker.

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No. 04-40558
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Lopez contends that the district court illegally sentenced
him pursuant to a mandatory Sentencing Guidelines regime, in
violation of Booker. He concedes that such argument is raised
for the first time and is reviewable for plain error only. See
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).
Sentencing a defendant pursuant to a mandatory guideline scheme,
standing alone, constitutes “Fanfan” error, and such an error is
“plain.” See Booker, 125 S. Ct. at 750, 768-69 (addressing
preserved challenge in companion case); United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005).
To satisfy the third prong of the plain-error test, Lopez
must show that his “substantial rights” were affected. See
Valenzuela-Quevedo, 407 F.3d at 732. “The pertinent question is
whether [the appellant] demonstrated that the sentencing judge
-–sentencing under an advisory scheme rather than a mandatory
one-–would have reached a significantly different result.”
Mares, 402 F.3d at 521. This question requires us to assess
whether “there is [an] indication in the record from the
sentencing judge’s remarks or otherwise that gives us any clue as
to whether [ ]he would have reached a different conclusion” if
sentencing under an advisory scheme. Id. at 522. Lopez has
conceded that he cannot make such a showing under Mares.
To the extent that Lopez argues that the Booker error is a
“structural” one that is not susceptible to a plain-error

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No. 04-40558
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analysis, or that he alternatively contends that plain-error
prejudice should be presumed, this court recently rejected such
arguments. United States v. Martinez-Lugo, 411 F.3d 597, 601
(5th Cir. 2005).
AFFIRMED.

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