                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      October 28, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-51438
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                           FERNANDO MARTINEZ,

                                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                      USDC No. 3:04-CR-1207-ALL
                         --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Fernando Martinez was convicted by a jury on five counts of

conspiracy and importation of more than five kilograms of cocaine,

conspiracy and possession with intent to distribute more than five

kilograms of cocaine, and making a false statement.           The district

court sentenced Martinez to 151 months in prison on the four

conspiracy and cocaine counts and 60 months on the false statement

count.   All sentences were to be served concurrently.

     Martinez argues that the district court erred in refusing the



     *
             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opinion should not be published and is not precedent except under the limited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.
following proposed jury instruction:

            Nervousness is a normal reaction to events that one
            does   not   understand.       For   that   reason,
            general nervousness is not sufficient to show
            consciousness of guilt. In the absence of facts
            that suggest that the defendant’s nervousness or
            anxiety derives from an underlying consciousness of
            criminal behavior, evidence of nervousness is
            insufficient to support a finding of guilty
            knowledge.

This court reviews the district court’s refusal to give a jury

instruction requested by the defense for abuse of discretion.

United States v. John, 309 F.3d 298, 304 (5th Cir. 2002).               “A court

commits reversible error where (1) the requested instruction is

substantially correct; (2) the requested issue is not substantially

covered in the charge; and (3) the instruction                   ‘concerns an

important point in the trial so that the failure to give it

seriously impaired the defendant’s ability to effectively present

a given defense.’”        Id. (citation omitted).

     None    of     the   three   factors    firmly   support     the    general

nervousness   instruction.         Martinez’s   requested    charge      was   an

incomplete statement of law with regard to nervousness because

nervousness at an inspection station is among the circumstances

that can be probative of guilty knowledge.            United States v. Diaz-

Carreon, 915 F.2d 951, 954 (5th Cir. 1990).           The charge adequately

instructed the jury on the requisite mental state because the

language conveyed to the jury, at least in broad terms, that

nervousness       could   be   among   the   circumstances      that    indicate

Martinez’s state of mind.          Contrary to Martinez’s argument, the

                                        2
evidence presented at trial suggested several connections between

Martinez’s nervousness and consciousness of guilt.                 United States

v. Jones, 185 F.3d 459, 464 (5th Cir. 1999).               The existence of the

substantial other evidence of guilty knowledge shows that the

district court did not abuse its discretion by concluding that an

instruction on general nervousness would not have been appropriate

and that the absence of such an instruction did not seriously

impair Martinez’s ability to present a defense.

       Martinez argues that his sentence was imposed illegally in

light of the rule in United States v. Booker, 125 S. Ct. 738

(2005), for the first time on appeal.              This court’s review is for

plain error.       See United States v. Valenzuela-Quevedo, 407 F.3d

728, 732-33 (5th Cir. 2005), cert. denied, ___ S. Ct. ___ (Oct. 3,

2005) (No. 05-5556); United States v. Mares, 402 F.3d 511, 520 (5th

Cir.    2005),     cert.   denied,     ___    S.   Ct.    ___   (Oct.    3,     2005)

(No. 04-9517).

       After     Booker,   “[i]t     is   clear    that    application        of   the

Guidelines in their mandatory form constitutes error that is

plain.”    Valenzuela-Quevedo, 407 F.3d at 733.                  To satisfy the

plain-error test in light of Booker, Martinez must demonstrate that

his substantial rights were affected by the error.                 United States

v. Infante, 404 F.3d 376, 395 (5th Cir. 2005).                      Contrary to

Martinez’s argument, there is nothing in the record indicating that

the district court would have imposed a different sentence under an

advisory Sentencing Guidelines scheme.             United States v. Bringier,

                                          3
405 F.3d 310, 317 n.4 (5th Cir. 2005), cert. denied, ___ S. Ct. ___

(Oct. 3, 2005) (No. 05-5535). Martinez argues that the application

of the Mares/Bringier plain error standard is contrary to the plain

error standard enunciated in United States v. Dominguez Benitez,

542 U.S. 74 (2004).   Martinez’s challenge to the showing required

under Mares and Bringier is unavailing.      See United States v.

Eastland, 989 F.2d 760, 768 n.16 (5th Cir. 1993).     Accordingly,

there is no basis for concluding that the district court would have

imposed a lower sentence under an advisory sentencing regime.   See

Mares, 402 F.3d at 522.

     AFFIRMED.




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