United States v. Palacios-Pinero

* 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this opinion should not be published and is not precedent except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 22, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40641
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO PALACIOS-PINERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-191-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Gustavo Palacios-Pinero (Palacios) appeals the sentence
following his guilty-plea conviction for illegal reentry
following deportation, in violation of 8 U.S.C. § 1326. For the
first time on appeal, he argues that the district court erred in
imposing a sentence under a mandatory guideline scheme, in
violation of United States v. Booker, 125 S. Ct. 738, 756-57
(2005). Because Palacios did not raise this issue in the
district court, this court reviews the argument for plain error.

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No. 04-40641
-2-
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33
(5th Cir. 2005). Thus, Palacios must show: (1) an error;
(2) that is clear or plain; (3) that affected his substantial
rights; and (4) that seriously affected the fairness, integrity,
or public reputation of his judicial proceedings. United States
v. Olano, 507 U.S. 725, 732-35 (1993).
Palacios argues that sentencing him under a mandatory
guideline scheme constitutes plain error. He makes no showing,
as required by Valenzuela-Quevedo, that the district court would
likely have sentenced him differently under an advisory
sentencing scheme. See Valenzuela-Quevedo, 407 F.3d at 733-34.
Similarly, there is no indication from the court’s remarks at
sentencing that the court would have reached a different
conclusion. Thus, Palacios has not met his burden to show that
the district court’s imposition of a sentence under a mandatory
guideline scheme was plain error. See id. Accordingly,
Palacios’s sentence is AFFIRMED.

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