                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                January 3, 2006
                         FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk

                             No. 04-10177



                       UNITED STATES OF AMERICA

                                                 Plaintiff - Appellee

                                   v.

                   JOAQUIN CADENA MURIETTA-MALDONADO

                                                 Defendant - Appellant


             Appeal from the United States District Court
                   for the Northern District of Texas


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     In our previous opinion in this case, we affirmed Defendant-

Appellant’s    conviction   and   sentence.   See   United    States     v.

Murietta-Maldonado, No. 04-10177, 111 Fed. Appx. 253, (5th Cir.

2004)(per curiam)(unpublished).     Following our judgment, Murietta-

Maldonado filed a petition for certiorari.          The Supreme Court

granted Murietta-Maldonado’s petition for certiorari, vacated our


     *
      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this opinion should not be published and is not precedent except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.

                                   -1-
judgment,        and    remanded   the      case    to    this     court    for     further

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

(2005). We now reconsider the matter in light of Booker and decide

to reinstate our previous judgment affirming Murietta-Maldonado’s

conviction and sentence.

       Murietta-Maldonado raised a Booker-related challenge to his

sentence on direct appeal before this court.                         Because Appellant

made       no   Booker     objection     in    the       district     court,       however,

Appellant’s claim must fail under the plain-error test2 discussed

in United States v. Mares, 402 F.3d 511, 520-22 (5th Cir. 2005).

       Murietta-Maldonado also argues that application of Justice

Breyer’s        remedial    opinion    in     Booker      would     strip    him    of   his

constitutional protections against ex post facto laws. He explains

that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)

gave him the right to a jury trial on all facts essential to his

sentence, and Justice Breyer’s remedial opinion in Booker stripped

that right away.         In United States v. Scroggins, 411 F.3d 572, 575-

76 (5th Cir. 2005), we rejected that argument and held that Booker

required us to apply both Justice Stevens’ merits opinion and

Justice Breyer’s remedial opinion in Booker to all cases such as

this one on direct review.

       Finally,        Murietta-Maldonado         argues    that    his     sentence     was


       2
          The district court sentenced appellant at the top of
the guideline range and gave no indication of a desire to give a
different sentence had the guideline been advisory.

                                            -2-
unreasonable.    Assuming arguendo that this argument can be made,

when this objection was not raised earlier, it has no merit with

respect to this guideline sentence.          See Mares, 402 F.3d 511 (5th

Cir. 2005) (“If the sentencing judge exercises her discretion to

impose a sentence within a properly calculated Guideline range, in

our   reasonableness   review   we    will   infer   that   the   judge   has

considered all the factors for a fair sentence set forth in the

Guidelines.”).   Id. at 519.

      For the reasons stated above, our prior disposition remains in

effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Murietta-

Maldonado’s conviction and sentence.




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