United States v. Conradino-Navarrete

* 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this opinion should not be published and is not precedent except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. 04-40455
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL CONRADINO-NAVARRETE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1348-1
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Gabriel Conradino-Navarrete (Conradino) appeals the sentence
following his conviction by a jury for making false
representations of his citizenship, in violation of 18 U.S.C.
§ 911. 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 Conradino did not raise this issue in the
district court, this court reviews the argument for plain error.

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No. 04-40455
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See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33
(5th Cir. 2005); see also United States v. Malveaux, __F.3d__,
No. 03-41618, 2005 WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).
Thus, Conradino 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).
Conradino argues that the sentencing error was structural
and that he thus need not show prejudice. He alternatively
maintains that prejudice should be presumed because the violation
of his rights may have played a role in the district court’s
sentencing decision. Conradino 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, Conradino
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, Conradino’s sentence is
AFFIRMED.

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