United States v. Martinez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 9, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-11081
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FABIAN MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-205-16
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Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Fabian Martinez
raises arguments that are foreclosed by United States v. Austin,
432 F.3d 598, 599-600 (5th Cir. 2005), which held that the
application of the remedial opinion of United States v. Booker,
543 U.S. 220 (2005), to a sentencing hearing where the underlying
offense was committed pre-Booker does not violate constitutional
due process or ex post facto requirements. In light of the
foregoing, we assume, arguendo only, that the appeal waiver does
not bar the instant appeal. The Government’s motion for summary

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No. 05-11081
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affirmance is GRANTED, and the judgment of the district court is AFFIRMED.

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