                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                    July 1, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 04-30203
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

         DAVID GARCIA-BELTRAN,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
     for the Western District of Louisiana
             m 1:03-CR-10010-1
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before DAVIS, SMITH, and DENNIS,                           made by the jury, to-wit, that the victim had
  Circuit Judges.                                          received serious bodily injury. Garcia-Beltran
                                                           was sentenced to 96 months’ imprisonment,
PER CURIAM:*                                               but without the enhancement his guideline
                                                           range would have been 70-87 months.
    This court affirmed David Garcia-Beltran’s
conviction and sentence. United States v.                     We agree with the government that the
Garcia-Beltran, 111 Fed. Appx. 279 (5th Cir.               plain error standard of review applies because
2004) (per curiam).1 The Supreme Court va-                 Garcia-Beltran did not preserve a Sixth
cated and remanded for further consideration               Amendment error. See United States v.
in light of United States v. Booker, 125 S. Ct.            Mares, 402 F.3d 511, 520 (5th Cir. 2005),
738 (2005). Garcia-Beltran v. United States,               petition for cert. filed (Mar. 31, 2005)
125 S. Ct. 1346 (2005). We requested and                   (No. 04-9517). “An appellate court may not
received supplemental letter briefs addressing             correct an error the defendant failed to raise in
the impact of Booker.2                                     the district court unless there is ‘(1) error,
                                                           (2) that is plain, and (3) that affects substantial
   Garcia-Beltran did not raise any sentencing             rights.’” Id. (quoting United States v. Cotton,
issues in his opening brief, but his counsel sub-          535 U.S. 625, 631 (2002)).
mitted a letter to this court promptly after the
Supreme Court had decided Blakely v. Wash-                    Assuming there is plain error under Booker,
ington, 542 U.S. 296 (2004). Garcia-Beltran                the third prong of the plain-error test requires,
claimed there was plain error in his sentencing            under Mares, that “the defendant rather than
under the logic of Blakely, because his sen-               the government bears the burden of persuasion
tence (to which he did not object in the district          with respect to prejudice.” Mares, 402 F.3d at
court) was enhanced by four levels under                   521 (citing United States v. Olano, 507 U.S.
U.S.S.G. § 2A2.2(b)(3)(B) by a finding not                 725, 734 (1993)). To show that his substantial
                                                           rights are affected, Garcia-Beltran would have
                                                           to “point[] to . . . evidence in the record sug-
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-        gesting that the district court would have im-
termined that this opinion should not be published         posed a lesser sentence under an advisory
and is not precedent except under the limited cir-         guidelines system.” United States v. Taylor,
cumstances set forth in 5TH CIR. R. 47.5.4.                409 F.3d 675, 677 (5th Cir. 2005) (per
                                                           curiam) (citations omitted). In other words,
   1
      In addition to affirming the conviction and          “the pertinent question is whether [the de-
sentence, we remanded for a technical correction           fendant] demonstrated that the sentencing
in the judgment.                                           judgeSSsentencing under an advisory scheme
   2
                                                           rather than a mandatory oneSSwould have
      Garcia-Beltran was represented by counsel
                                                           reached a significantly different result.”
until the opinion was issued, whereupon counsel
                                                           Mares, 402 F.3d at 521.
obtained leave of this court to withdraw as counsel.
Garcia-Beltran filed his certiorari petition pro se
and continues to represent himself at this time.              In his supplemental letter brief on remand,

                                                       2
Garcia-Beltran has made no effort to satisfy
this burden. Thus, he has not shown that the
error affected his substantial rights. As was
true for the defendant in Mares, because
Garcia-Beltran has not demonstrated that the
record establishes “what the trial judge would
have done had the Guidelines been advisory,”
Mares, 402 F.3d at 522, he has not “carr[ied]
his burden of demonstrating that the result
would have likely been different had the judge
been sentencing under the Booker advisory
regime rather than the pre-Booker mandatory
regime.” Id. Garcia-Beltran has not shown
that “with a probability sufficient to undermine
confidence in the outcome, that if the judge
had sentenced him under an advisory sentenc-
ing regime rather than a mandatory one, he
would have received a lesser sentence.”
United States v. Infante, 404 F.3d 376, 395
(5th Cir. 2005).

   The judgment of conviction is AFFIRMED
for the reasons stated in our initial opinion.
For the reasons set forth in this opinion on
remand, t he judgment of sentence is also
AFFIRMED.




                                                   3
