United States of America v. Armando Torres-Avila

* 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this opinion should not be published and is not precedent except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. 04-40527
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ARMANDO TORRES-AVILA
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:02-CR-819-1
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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 judgment of conviction and sentence
of Armando Torres-Avila (Torres); the Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). United States v. Torres-Avila,
No. 04-40527 (5th Cir. Dec. 16, 2004) (unpublished); vacated by
sub nom. De la Cruz-Gonzalez v. United States, 125 S. Ct. 1995
(2005).

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No. 04-40527
-2-
Torres argues that the district court erred by imposing a
sentence pursuant to the mandatory federal sentencing guideline
system that was held unconstitutional in Booker. Torres fails to
meet his burden of showing that the district court’s sentence
under guidelines it deemed mandatory affected his substantial
rights such that his sentence amounts to plain error. United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Torres’s conviction and
sentence.
AFFIRMED.

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