                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      January 11, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 03-40484
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                          JOSE ANTONIO BONUGLI,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                     USDC No. 5:02-CR-1091-ALL


Before JONES, WIENER, and DEMOSS, Circuit Judges.

PER CURIAM:*

           Jose Antonio Bonugli appeals his jury conviction and

sentence for conspiracy to possess with intent to distribute more

than one thousand kilograms of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 846.

           Bonugli    contends   that   the   district    court   erred     in

admitting evidence related to the July 28, 1999, shooting at 3208

O’Kane Street in Laredo, Texas.




     *
             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opinion should not be published and is not precedent except under the limited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.
          Bonugli was charged with conspiring to possess with

intent to distribute more than one thousand kilograms of marijuana

from on or about February 2, 1999, to on or about February 16,

2002.   Evidence related to the shooting on July 28, 1999, was

inextricably intertwined with the charged conspiracy because it

placed Bonugli at 3208 O’Kane Street immediately prior to the

discovery of approximately eight hundred pounds of marijuana.

Therefore, this evidence was intrinsic to the charged conspiracy,

and its admission did not violate FED R. EVID. 404(b).    See United

States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992).    Moreover, the

district court’s admission of evidence related to the shooting did

not violate FED R. EVID. 403.   Bonugli’s contentions that no witness

directly placed him at the house and that the gunshot residue

particles likely came from the hands of the officers who handcuffed

him go to the weight of the evidence rather than its admissibility.

Also, any undue prejudice from the admission of the challenged

evidence was mitigated by the district court’s limiting instruc-

tion. See United States v. Route, 104 F.3d 59, 63 (5th Cir. 1997).

Therefore, the district court did not abuse its discretion in

admitting evidence related to the shooting.     See United States v.

Haese, 162 F.3d 359, 364 (5th Cir. 1998).      Nevertheless, even if

the district court abused its discretion in admitting evidence

related to the shooting, the error was harmless beyond a reasonable

doubt given the other substantial evidence of Bonugli’s guilt. See

United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995).

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            Bonugli also contends that the district court erred in

failing to address him personally and determine whether he wished

to make a statement or present any information to mitigate the

sentence.    Because Bonugli did not object on this basis in the

district court, review is for plain error only.          United States v.

Reyna, 358 F.3d 344, 350 (5th Cir.) (en banc), cert. denied, 541

U.S. 1065 (2004).

            We need not decide whether the district court’s failure

to comply with FED. R. CRIM. P. 32 constituted error that was plain

and affected Bonugli’s substantial rights because in any event, the

district court’s error did not seriously affect the fairness,

integrity, or public reputation of his sentencing proceeding.         See

id. at 350-53.      Therefore, this court declines to exercise its

discretion to correct the error.

            Bonugli also contends that the district court erred in

failing to state reasons in open court for imposing the two-

hundred-ten-month    sentence   within   a   guideline   range   exceeding

twenty-four months.    Because Bonugli did not object on this basis

in the district court, review is for plain error only.             United

States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000).

            Assuming arguendo that there was error and it was plain,

Bonugli has not demonstrated that the error affected his substan-

tial rights or seriously affected the integrity of the judicial

proceeding because his sentence was supported by the record and was



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not contrary to law.     See id. at 441.         Therefore, he has failed to

establish plain error.

           Finally,     Bonugli    contends       that    the    district      court

violated his Sixth Amendment right when it enhanced his sentence

based on facts that were neither admitted by him nor found by a

jury beyond a reasonable doubt.         Because Bonugli did not object on

this basis in the district court, this court’s review is for plain

error.   See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732

(5th Cir.), cert. denied, 126 S. Ct. 267 (2005).

           The   district    court    erred      when    it    sentenced   Bonugli

pursuant to the mandatory guideline system held unconstitutional in

United States v. Booker, 125 S. Ct. 738 (2005).                  See Valenzuela-

Quevedo,   407   F.3d   at   733     (“It   is    clear       after   Booker   that

application of the Guidelines in their mandatory form constitutes

error that is plain.”).       However, Bonugli has failed to point to

any evidence in the record indicating that the same sentence would

not have been imposed had the district court known that the

Sentencing Guidelines were advisory.             The record itself gives no

indication that the district court would have reached a different

result under an advisory guidelines system.               In fact, the district

court sentenced Bonugli near the middle of the guideline range.

Given the lack of evidence indicating that the district court would

have reached a different conclusion, Bonugli has not demonstrated

that his substantial rights were affected, and, thus, he has failed



                                       4
to establish plain error.   See United States v. Mares, 402 F.3d

511, 520-22 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

          Accordingly, the district court’s judgment is AFFIRMED.




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