USA v. Chapa-Gutierrez, No. 04-40587 (5th Cir. 2006)

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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 21, 2006 Charles R. Fulbruge III Clerk No. 04-40587 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIAS CHAPA-GUTIERREZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 2:03-CR-335-1 -------------------Before STEWART, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Elias Chapa-Gutierrez (Chapa) appeals the 33-month sentence imposed following his jury trial conviction for transporting illegal aliens within the United States. Chapa argues that, in light of United States v. Booker, 543 U.S. 220 (2005), his sentence must be vacated because it was enhanced on the basis of judicial factual findings. Specifically, he challenges the increase in his base offense level pursuant to U.S.S.G. § 2L1.1(b)(5). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 04-40587 -2Chapa concedes that he did not raise a constitutional challenge to his sentence before the district court and that review is for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). The district court did commit Booker error because Chapa s sentence was enhanced based on facts not alleged in the indictment or proved to a jury beyond a reasonable doubt. at 244. However, Chapa fails to meet his burden of showing that the error affected his substantial rights. at 521. See Booker, 543 U.S. See Mares, 402 F.3d Chapa has not identified anything in the record indicating that the district court would have imposed a lower sentence under an advisory guidelines scheme. AFFIRMED. See id.

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