IN THE UNITED STATES COURT OF APPEALS
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`FOR THE FIFTH CIRCUIT
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`No. 03-21081
`Summary Calendar
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`United States Court of Appeals
`Fifth Circuit
`F I L E D
`January 6, 2006
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`Charles R. Fulbruge III
`Clerk
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`UNITED STATES OF AMERICA,
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`PABLO RODRIGUEZ, JR.
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`versus
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`Plaintiff-Appellant,
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`Defendant-Appellee.
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`Appeal from the United States District Court
`for the Southern District of Texas
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`ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
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`Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
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`PER CURIAM:*
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`The United States Supreme Court granted Defendant-Appellant Pablo Rodriguez, Jr.’s
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`petition for writ of certiorari, vacated the previous judgment of this Court, and remanded the case
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`to this Court for further consideration in light of United States v. Booker, 125 S. Ct. 738 (2005). See
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`Rodriguez v. United States, 125 S. Ct. 1410 (2005).
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`*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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`PROCEDURAL HISTORY
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`Pablo Rodriguez, Jr. pled guilty to aiding and abetting the possession with intent to
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`distribute100 kilograms or more of marijuana, in contravention of 21 U.S.C. § 841(a)(1),
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`(b)(1)(B)(vii), and 18 U.S.C. § 2. The district court sentenced him to a term of 70 months and
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`ordered that the Bureau of Prisons (“BOP”) pay 75% of Rodriguez’s prison wages to the mother of
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`his children. During his initial appeal he challenged: (1) the BOP order as impermissible under 21
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`U.S.C. § 841, because the garnishment of his wages exceeded the statutory maximum sentence
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`authorized by § 841; (2) that 21 U.S.C. § 841(a) and (b) were constitutionally infirm; and (3) that his
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`sentence was not cognizable under Blakely v. Washington, 542 U.S. 296 (2004).
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`As to his sentence of imprisonment, we found his contentions to be unavailing. Finding no §
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`841 authority for garnishment to be part of this sentence, however, we modified the judgment to
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`vacate the BOP order and, as modified, affirmed the judgment. See United States v. Rodriguez, 112
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`Fed. Appx. 335 (5th Cir. 2004). Rodriguez petitioned the Supreme Court for certiorari. His petition
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`was granted and the case was remanded for our consideration of his sentence in light of Booker.
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`CONSIDERATION OF RODRIGUEZ’S SENTENCE IN LIGHT OF BOOKER
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`Pursuant to our instructions, the parties filed supplemental briefs which discuss the import of
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`Booker as it pertains to the imposed sentence and any entitlement Rodriguez may have to be
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`resentenced. Rodriguez now argues that he should be sentenced anew because his sentence was
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`enhanced based on facts that were not proven to a jury beyond a reasonable doubt, as well as because
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`he was sentenced under federal Sentencing Guidelines that were presumed to be mandatory. He is
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`fully cognizant however that because neither of his averments were raised before the district court,
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`his claims will be reviewed by this Court for plain error, a determination which involves four related
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`2
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`prongs: (1) an error; (2) that was clear and obvious; and (3) said error affected the substantial rights
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`of the defendant. United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert. denied, Mares v.
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`United States, 126 S. Ct. 43 (2005). If the foregoing elements are satisfied, a reviewing court may
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`use its discretion to find plain error only if: (4) the error seriously affected “the fairness, integrity, or
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`public reputation of the judicial proceedings.” Id.
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`We will concede that Rodriguez has established the initial two prongs under the plain error
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`analysis. Nevertheless, we have been directed to nothing in the record which indicates that
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`Rodriguez’s substantial rights were affected. Specifically, the record does not evidence a reasonable
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`likelihood that the sentencing judge would have imposed a lesser sentence if the judge had understood
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`the Guidelines to be advisory. On this record, Rodriguez has not demonstrated plain error and his
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`sentence of imprisonment must be affirmed.1
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`WAGES SANCTION
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`The district court ordered that the Bureau of Prisons (“BOP”) pay 75% of Rodriguez’s prison
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`wages to the mother of his children. Although Rodriguez did not object to the district court’s order,
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`we review de novo whether the sentence exceeds the statutory maximum term. See United States v.
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`Ferguson, 369 F.3d 847, 849 (5th Cir. 2004) (“[W]e review de novo a sentence that allegedly
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`exceeds the statutory maximum term.” (citation omitted)). The district court’s order to the BOP must
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`be vacated because it was not authorized by 21 U.S.C. § 841. See and compare United States v.
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`1 Rodriguez further argues that because his sentence was imposed under a Sentencing
`Guidelines regime that was understood to be mandatory, this constitutes a “structural” error that
`necessitates resentencing. He recognizes of course that this argument is foreclosed by this court’s
`decision in United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005), cert. denied,
`Martinez-Lugo v. United States, 126 S. Ct. 464 (2005). Finally, we reject Rodriguez’s suggestion
`that Booker’s remedial opinion retroactively violates the Ex Post Facto Clause, as a similar argument
`has already denied by this court. See United States v. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005).
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`3
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`Chandler, 125 F.3d 892, 898 (5th Cir. 1997) (finding “no authority for such a sanction under §
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`841(a)(1)”). Accordingly, the district court’s judgment is MODIFIED to strike the order that requires
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`the BOP to send 75% of Rodriguez’s prison earnings to the mother of his children. The district
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`court’s judgment is AFFIRMED AS MODIFIED.
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`4