United States v. Rivera-Bernal

* 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this opinion should not be published and is not precedent except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
February 9, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-51435
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO RIVERA-BERNAL, also known as Noe Gomez-Robles, also
known as Samuel Rivera-Bernal,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-1549-PRM
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Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Alfredo Rivera-Bernal (Rivera) appeals the sentence imposed
following his guilty-plea conviction for illegal reentry. Rivera
argues for the first time on appeal that the district court’s
mandatory application of the Sentencing Guidelines violates United
States v. Booker, 543 U.S. 220 (2005).
To establish plain error, Rivera must show: (1) error;
(2) that is plain; (3) that affects his substantial rights; and
(4) that affects the fairness, integrity, or public reputation of

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judicial proceedings. United States v. Mares, 402 F.3d 511, 520
(5th Cir.), cert. denied, 126 S. Ct. 43 (2005). Mandatory
application of the Guidelines is error that is plain. United
States v. Duarte-Juarez, 441 F.3d 336, 338 (5th Cir.), cert.
denied, 127 S. Ct. 161 (2006). However, Rivera has not met his
burden to show “‘with a probability sufficient to undermine
confidence in the outcome, that if the judge had sentenced him
under an advisory sentencing regime rather than a mandatory one, he
would have received a lesser sentence.’” See id. (quoting United
States v. Infante, 404 F.3d 376, 394-95 (5th Cir. 2005)). Rivera
concedes that the record does not establish whether the district
court would have imposed a lower sentence had it known that the
Guidelines were advisory. Accordingly, Rivera has not shown plain
error, and the judgment of the district court is AFFIRMED.

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