United States v. Garduno-Hermosa

* 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this opinion should not be published and is not precedent except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 17, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41090
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOISES ELISEO GARDUNO-HERMOSA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-280-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Moises Eliseo Garduno-Hermosa (Garduno) appeals the sentence
imposed following his conviction for conspiracy to possess with
intent to distribute in excess of five kilograms of cocaine.
Garduno argues for the first time on appeal that the district
court erred by sentencing him under a mandatory sentencing
guidelines scheme, that this issue is subject to de novo review,
and that prejudice should be presumed. See United States v.
Booker, 125 S. Ct. 738 (2005).

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No. 04-41090
-2-
Garduno concedes that pursuant to United States v. Mares,
402 F.3d 511 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517), plain error review applies and that he
cannot establish that the district court’s error affected his
substantial rights. He raises the issue solely to preserve
Supreme Court review.
Because Garduno has not established that the district court
plainly erred in sentencing him, his sentence is AFFIRMED.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-34
(5th Cir. 2005), petition for cert. filed (July 25, 2005)
(No. 05-5556).

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