ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

We previously affirmed the sentence of Prisciliano Jimenez-Cid for importation of marijuana. While petition for certiorari with the Supreme Court was pending in this case, the Supreme Court decided United States v. Booker. 1 It subsequently granted Jimenez-Cid’s petition for certiorari and vacated and remanded for reconsideration in light of Booker.

The Government concedes, for purposes of argument, that there was Booker error because the district court enhanced Jimenez-Cid’s sentence based on facts, other than a prior conviction, neither alleged in the indictment and proven to a jury nor admitted by Jimenez-Cid. However, because Jimenez-Cid concedes that he did not preserve this error, he must show that the error was plain by showing that the district court would have sentenced him less harshly had it known the Sentencing Guidelines were not mandatory. 2 He has not done so. There is no indication in the record that the court would have given a lower sentence; indeed, the only indication at all — that the court sentenced him at the top of the Guidelines range — suggests the opposite. Finally, Jimenez-Cid’s argument that Booker’s remedial holding cannot be applied to him retroactively is foreclosed by this court’s precedent. 3

Jiminez-Cid’s sentence is AFFIRMED.