UNITED STATES of America, Plaintiff-Appellee, v. Jose CARBAJAL-MARTINEZ, Defendant-Appellant, 133 F. App'x 949

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM: This court affirmed Jose Carbajal-Martinez’s sentence. United, States v. Carbajal-Martinez, 87 Fed.Appx. 368 (5th Cir.2004) (per curiam). The Supreme Court vacated and remanded for further consideration in light of United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Carbajal-Martinez v. United States, — U.S.-, 125 S.Ct. 1110, 160 L.Ed.2d 990 (2005). We requested and received supplemental letter briefs addressing the impact of Booker.

Carbajal-Martinez claims there is error under Booker because the district court, rather than a jury, made what we described in our initial opinion as “factual findings regarding the nature and extent of Carbajal’s criminal history.” The district court largely adopted the recommendations in the presentence report, which narrated some of the details of CarbajalMartinez’s past crimes.

The government claims there is no Booker error because the district court used the facts regarding Carbajal-Martinez’s criminal past to justify an upward departure, which, as the government states, “was not mandated by the guidelines, but was within the district court’s discretion.” Even assuming arguendo that the court made findings that would violate Booker, it is undisputed that Carbajal-Martinez did not raise a Sixth Amendment objection or complain that the facts at issue must be decided by a jury if not admitted to by the defendant.

So, even if there was Booker error, the government correctly contends, in the alternative, that the plain error standard of review should apply because Carbajal-Martinez did not preserve a Sixth Amendment error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). “An appellate court may not correct an error the defendant failed to raise in the district court unless there is ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)).

If there is plain error here, only the first two prongs are satisfied. With regard to the third prong, under Mares, “the defendant rather than the government bears the burden of persuasion with respect to prejudice.” Mares, 402 F.3d at 521 (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). To show that his substantial rights are affected, Carbajal-Martinez must “point[] to ... evidence in the record suggesting that the district court would have imposed a lesser sentence under an advisory guidelines system.” United States v.

Taylor, 409 F.3d 675, 677 (5th Cir.2005) (per curiam) (citations omitted). In other words, “the pertinent question is whether [the defendant] demonstrated that the sentencing judge—sentencing under an advisory scheme rather than a mandatory one— would have reached a significantly different result.” Mares, 402 F.3d at 521. Carbajal-Martinez has presented nothing to satisfy that burden. The district court’s considerable departure (from a guidelines range of 77-96 months to a sentence of 180 months) shows that the court was not influenced by any factual findings that may have affected the calculation of the range.

Accordingly, the judgment of sentence is AFFIRMED. 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.