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United States v. Mares

United States Court of Appeals for the Fifth Circuit

March 4, 2005, Filed

No. 03-21035


 [*513]  W. EUGENE DAVIS, Circuit Judge:

Samuel Richard Mares, Jr., appeals his conviction and sentence for the crime of being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We find no merit to any of Mares' arguments challenging his conviction which we affirm.

The principal issue in this appeal is the legality of Mares' sentence following the Supreme Court's decision in  Booker/Fanfan. United States v. Booker, 125 S. Ct. 738, 160 L. Ed. 2d 621, 2005 U.S. LEXIS 628 (2005). Mares raised this issue for the first time in his brief filed with us on direct appeal. We agree with the Eleventh Circuit that our review is for plain error.  United States v. Rodriguez, 398 F.3d 1291, 2005 U.S. App. LEXIS 1832, 16-17 (11th Cir. 2005). Because the defendant did not carry his burden of establishing that the error affected the outcome of the proceeding, we find no plain error and affirm the sentence.

Mares' conviction arose from an altercation [**2]  that occurred outside a Houston neighborhood bar on July 1, 2002. That night, Juan and Daniel Lopez confronted Mares and his friend, Alfredo Martinez, because they suspected Mares and Martinez had attempted to burglarize Juan Lopez's truck. Mares and Martinez were each stabbed during the fight. Several witnesses testified that shots were fired from the PT Cruiser in which Mares and Martinez fled the scene.

At about 1:00 a.m. the next morning, Houston police were summoned to the apartment of Isabel Cervantez, Martinez's girlfriend. There was a blood-stained PT Cruiser in the parking lot, and an ambulance and a fire truck were already on the scene. Paramedics treated Mares and Martinez there and loaded them into separate ambulances. As Mares was being loaded into the ambulance, one of the paramedics noticed something bulky in Mares' pocket. The paramedic removed the object, a magazine clip with twenty-seven rounds of ammunition.

There was some confusion as to the identity of the suspects because one paramedic described the patient he assisted as muscular and stocky with tattoos on his arms. Mares, although muscular and stocky, has a large tattoo on his back but none on his arms. Martinez [**3]  is much smaller with tattoos on his arms. Some of the paramedics later testified that they had retrieved the magazine clip from the patient with tattoos on his arms. Furthermore, Cervantez testified that she checked Mares' pockets for identification before he left with the paramedics and did not find a magazine clip. She also testified that when Mares left the apartment he was wearing boxer shorts, not pants.

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402 F.3d 511 *; 2005 U.S. App. LEXIS 3653 **


Subsequent History: US Supreme Court certiorari denied by Mares v. United States, 2005 U.S. LEXIS 6132 (U.S., Oct. 3, 2005)

Prior History:  [**1]  Appeal from the United States District Court For the Southern District of Texas.

Disposition: AFFIRMED.


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