United States of America v. Roberto Fernandez-Rodriguez

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10518
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERTO FERNANDEZ-RODRIGUEZ
Defendant - Appellant
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Appeal from the United States District Court for the
Northern District of Texas, Dallas
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
The Supreme Court vacated the sentence in this case and
remanded the case to this Court to reconsider in light of United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).
Subsequently, we requested letter briefs from the parties with
respect to Booker issues. Having reviewed the parties’ letter
briefs, we affirm the judgment of the district court.
United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2005
Charles R. Fulbruge III
Clerk

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No. 04-10518
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Appellant’s Booker claim is foreclosed by the waiver of an
appeal provision in his plea agreement. As conceded in
Appellant’s letter brief, this Court’s precedents would not
recognize an infirmity in the waiver even after Booker. See
United States v. Cortez, ___ F.3d ___, No. 04-10152, 2005 WL
1404944 (5th Cir. June 16, 2005).
Moreover, even if waiver of an appeal provision would not
foreclose consideration under this Court’s precedents,
Appellant’s Blakely/now-Booker claim was raised for the first
time on direct appeal. If addressed, that claim would be
reviewed for plain error, and Appellant has failed to show that
the district court would have imposed a lesser sentence under an
advisory guidelines system. Thus, the error, while clear and
obvious, has not been shown to affect Appellant’s substantive
rights. See United States v. Dominguez Benitez, 542 U.S. 74,
___, 124 S. Ct. 2333, 2339 (2004). Accordingly, for the
foregoing reasons, we AFFIRM the judgment of the district court.

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