United States v. Vela-Salinas

* 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this opinion should not be published and is not precedent except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
October 4, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40550
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS RAY VELA-SALINAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-948-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 Luis Ray Vela-Salinas
(Vela). United States v. Vela-Salinas, 115 Fed. Appx. 238, 239
(5th Cir. Dec. 17, 2004)(No. 04-40550)(unpublished). The Supreme
Court vacated and remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). We requested and
received supplemental letter briefs addressing the impact of
Booker.

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No. 04-40550
-2-
Vela 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, Vela bears the burden of
“establish[ing] that the error affected the outcome of the
district court proceedings.” United States v. Valenzuela-
Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005), petition for cert.
filed (July 25, 2005) (No. 05-5556). Our review of the
sentencing transcript reveals that he has not carried this
burden. The transcript indicates that the district court
sentenced Vela to the middle of the applicable Guidelines range
and denied a defense motion for a downward departure. 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).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Vela’s conviction and sentence.
AFFIRMED.

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