United States v. Vences

* 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this opinion should not be published and is not precedent except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 24, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40504
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL VENCES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-941-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:*
This court affirmed the sentence of Miguel Vences. United
States v. Vences, No. 04-40504 (5th Cir. Dec. 16, 2004)
(unpublished). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker,
125 S. Ct. 738 (2005). Vences v. United States, 125 S. Ct. 1991
(2005). We requested and received supplemental letter briefs
addressing the impact of Booker.

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No. 04-40504
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Vences argues that sentencing him under the mandatory
Sentencing Guidelines regime held unconstitutional in Booker
constituted reversible plain error. However, to meet the third
prong of the plain error analysis and show that the error
affected his substantial rights, Vences bears the burden of
“establish[ing] that the error affected the outcome of the
district court proceedings.” See United States v. Valenzuela-
Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005). Our review of the
sentencing transcript reveals that he has not carried this
burden. The transcript indicates that the district court
sentenced Vences to the middle of the applicable Guidelines range
based on his extensive criminal history, implicitly rejecting the
arguments made in mitigation. Nothing in the record indicates
that the sentencing judge would have given a lower sentence if he
had treated the Guidelines as advisory rather than mandatory.
See United States v. Mares, 402 F.3d 511, 521-22 (5th Cir. 2005);
petition for cert. filed, Mar. 31, 2005 (No. 04-9517).
Vences’s conviction and sentence are AFFIRMED. We REMAND to
the district court for correction of the judgment pursuant to
FED. R. CRIM. P. 36 to reflect that Vences was convicted of a
violation of 8 U.S.C. § 1326 for attempted illegal reentry, not
illegal reentry, into the United States after deportation.

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