USA v. Martinez

Filing 920061109

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
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. -------------------Appeal from the United States District Court for the Northern District of Texas USDC No. 3:04-CR-205-16 -------------------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 November 9, 2006 Charles R. Fulbruge III Clerk

foregoing, we assume, arguendo only, that the appeal waiver does not bar the instant appeal. The Government's motion for summary

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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No. 05-11081 -2affirmance is GRANTED, and the judgment of the district court is AFFIRMED.