     Case: 09-40966 Document: 00511369494 Page: 1 Date Filed: 02/02/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 2, 2011
                                     No. 09-40966
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDUARDO MOLINA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:08-CR-890-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Eduardo Molina was convicted by a jury of conspiracy to transport
unlawful aliens; aiding and abetting the transportation of an unlawful alien
(three counts); and transportation of an unlawful alien (two counts). Molina’s
78-month sentence was enhanced for obstruction of justice and for transporting
a minor unaccompanied by a parent or grandparent.                     On appeal, Molina
challenges these enhancements on the basis of the Sixth Amendment.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-40966 Document: 00511369494 Page: 2 Date Filed: 02/02/2011

                                 No. 09-40966

Specifically, he contends that the district court violated the Sixth Amendment
by imposing the enhancements based upon facts not found by a jury.
      A district court’s interpretation or application of the Guidelines is
reviewed de novo, and its factual findings are reviewed for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).). In United
States v. Booker, 543 U.S. 220, 244 (2005), the Court extended Apprendi v. New
Jersey, 530 U.S. 466 (2000) to the Sentencing Guidelines, holding that, with the
exception of prior convictions, facts needed for a sentence exceeding the
maximum authorized by a plea of guilty or a jury verdict “must be admitted by
the defendant or proved to a jury beyond a reasonable doubt.” In order to
remedy the Sixth Amendment problem posed by factfinding under the
Guidelines, the Court in Booker rendered the formerly-mandatory Guidelines
advisory only. Id. at 245. Under the post-Booker advisory guideline sentencing
system, district courts make the factual findings relevant to sentencing, just as
they did before Booker. United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005).
      Molina was sentenced under the post-Booker advisory Guidelines system.
The district court did not violate Booker by finding the facts relevant to the
enhancements. See Mares, 402 F.3d at 519; see also United States v. Stevens,
487 F.3d 232, 245-46 (5th Cir. 2007); United States v. Rhine, 583 F.3d 878, 886
(5th Cir. 2009).   Accordingly, Molina’s Sixth Amendment arguments are
unavailing and the district court’s judgment is AFFIRMED. Molina’s pro se
motion for appointment of counsel is DENIED.




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