                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                    May 26, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 03-10709
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

        JOSE CARBAJAL-MARTINEZ,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
      for the Northern District of Texas
             m 4:03-CR-35-ALL
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before SMITH and WIENER,                                   justify an upward departure, which, as the
  Circuit Judges.*                                         government states, “was not mandated by the
                                                           guidelines, but was within the district court’s
PER CURIAM:**                                              discretion.” Even assuming arguendo that the
                                                           court made findings that would violate Booker,
   This court affirmed Jose Carbajal-Marti-                it is undisputed that Carbajal-Martinez did not
nez’s sentence. United States v. Carbajal-                 raise a Sixth Amendment objection or com-
Martinez, 87 Fed. Appx. 368 (5th Cir. 2004)                plain that the facts at issue must be decided by
(per curiam). The Supreme Court vacated and                a jury if not admitted to by the defendant. So,
remanded for further consideration in light of             even if there was Booker error, the govern-
United States v. Booker, 125 S. Ct. 738                    ment correctly contends, in the alternative, that
(2005). Carbajal-Martinez v. United States,                the plain error standard of review should apply
125 S. Ct. 1110 (2005). We requested and re-               because Carbajal-Martinez did not preserve a
ceived supplemental letter briefs addressing the           Sixth Amendment error. See United States v.
impact of Booker.                                          Mares, 402 F.3d 511, 520 (5th Cir. 2005),
                                                           petition for cert. filed (Mar. 31, 2005)
    Carbajal-Martinez claims there is error                (No. 04-9517).
under Booker because the district court, rather
than a jury, made what we described in our                    “An appellate court may not correct an
initial opinion as “factual findings regarding             error the defendant failed to raise in the district
the nature and extent of Carbajal’s criminal               court unless there is ‘(1) error, (2) that is plain,
history.” The district court largely adopted the           and (3) that affects substantial rights.’” Id.
recommendations in the presentence report,                 (quoting United States v. Cotton, 535 U.S.
which narrated some of the details of Carbajal-            625, 631 (2002)). If there is plain error here,
Martinez’s past crimes.                                    only the first two prongs are satisfied.

   The government claims there is no Booker                    With regard to the third prong, under Mar-
error because the district court used the facts            es, “the defendant rather than the government
regarding Carbajal-Martinez’s criminal past to             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
   *
     Judge Duhé was a member of this panel when            (1993)). To show that his substantial rights
the opinion issued on February 12, 2004. Al-               are affected, Carbajal-Martinez must “point[]
though he remains a Senior Circuit Judge on this           to . . . evidence in the record suggesting that
court, he is currently not hearing cases. Accord-          the district court would have imposed a lesser
ingly, this matter is decided by a quorum. See             sentence under an advisory guidelines system.”
28 U.S.C. § 46(d).                                         United States v. Taylor, No. 03-10167, 2005
   **                                                      U.S. App. LEXIS 8701, at *4 (5th Cir. May
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                           17, 2005) (per curiam) (citations omitted). In
termined that this opinion should not be published
and is not precedent except under the limited
                                                           other words, “the pertinent question is whether
circumstances set forth in 5TH CIR. R. 47.5.4.             [the defendant] demonstrated that the sentenc-

                                                       2
ing judgeSSsentencing under an advisory
scheme rather than a mandatory oneSSwould
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 influ-
enced by any factual findings that may have
affected the calculation of the range. Accord-
ingly, the judgment of sentence is
AFFIRMED.




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