Takeaway
In short, this case affirmed Mares’s conviction and sentence, while establishing the Fifth Circuit’s early post-Booker rule that unpreserved mandatory-Guidelines error warrants relief only when the defendant can show that an advisory sentencing regime likely would have produced a different result.
Samuel Richard Mares, Jr., was convicted of being a felon in possession of ammunition after a fight outside a Houston bar. Mares and Alfredo Martinez were stabbed during the confrontation and fled in a PT Cruiser. At Martinez’s girlfriend’s apartment, paramedics treated both men. A paramedic recovered a magazine containing twenty-seven rounds of ammunition from a patient’s pocket; the central trial dispute was whether that patient was Mares or Martinez.
Mares sought to call Martinez, whose tattoos allegedly matched paramedics’ descriptions better than Mares’s did. Martinez’s lawyer advised that Martinez would invoke the Fifth Amendment as to all meaningful questions because testimony could expose him to prosecution for offenses connected with the bar incident. The district court excused Martinez from substantive testimony, though it allowed him to appear to display his tattoos. The jury found Mares guilty.
At sentencing, the district court calculated a base offense level of 24 and added four levels after finding that Mares possessed the ammunition in connection with an armed robbery. The resulting Guidelines range was 110 to 137 months, capped by the statutory maximum of 120 months. The court imposed 120 months’ imprisonment and three years of supervised release. Mares challenged both his conviction and, for the first time on appeal, his sentence under Blakely and Booker.
Issue #1
Whether the district court abused its discretion and denied Mares his right to present a defense by allowing Martinez to invoke the Fifth Amendment without a question-by-question examination outside the jury’s presence.
Holding
No. The district court reasonably concluded that Martinez could properly refuse to answer essentially all questions relevant to Mares’s defense.
Reasoning
A trial court must examine the legitimacy and scope of a witness’s asserted privilege against self-incrimination. A witness may be excused entirely only when the court determines that the witness could legitimately refuse to answer essentially all relevant questions. The decision to exclude testimony on that basis is reviewed for abuse of discretion.
By the time Mares sought Martinez’s testimony, the evidence implicated Martinez in possible burglary, aggravated robbery, deadly conduct, unlawful firearm possession, and firing shots during the incident. Thus, Martinez had a genuine and substantial risk of self-incrimination if he testified about the events.
Mares’s defense depended on showing that Martinez, rather than Mares, possessed the ammunition magazine and fired the shots. Questions capable of establishing that defense would necessarily probe Martinez’s own criminal involvement. The district court had enough information to determine that the privilege covered virtually every relevant substantive question, while still permitting Martinez to display his tattoos for the limited identification point.
Issue #2
Whether the prosecutor’s closing remarks improperly bolstered government witnesses or impugned defense counsel, requiring reversal.
Holding
No. The remarks did not constitute reversible prosecutorial misconduct, and any possible impropriety did not affect Mares’s substantial rights.
Reasoning
Because Mares did not contemporaneously object to the closing argument, the court reviewed only for plain error. The central question was whether the remarks cast serious doubt on the correctness of the verdict, considering their prejudicial effect, any curative instruction, and the strength of the evidence supporting conviction.
The prosecutor permissibly argued that defense witness Isabel Cervantez had a motive to lie and that the paramedics lacked such a motive. Her statement that the defense wanted the jury to get lost in a 'smoke screen' attacked the defense theory, not defense counsel’s integrity or character.
In any event, the court instructed the jury that lawyers’ arguments were not evidence and that the verdict must rest on the admitted evidence; that instruction was also included in the written charge. Given the substantial evidence of guilt, the remarks did not undermine confidence in the verdict or warrant reversal.
Issue #3
Whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms or ammunition, violates the Second Amendment or exceeds Congress’s Commerce Clause authority.
Holding
No. Existing Fifth Circuit precedent foreclosed both constitutional challenges.
Reasoning
Mares’s Second Amendment claim was barred by United States v. Darrington, which had upheld § 922(g)(1) against the asserted individual-right-to-bear-arms challenge.
His Commerce Clause argument—that the statute is facially invalid because it does not require a substantial effect on interstate commerce—was likewise foreclosed by prior Fifth Circuit decisions. The panel therefore rejected both claims without revisiting the settled circuit law.
Issue #4
How federal district courts should sentence defendants after Booker made the Guidelines advisory rather than mandatory.
Holding
District courts must calculate and consider the Guidelines range and the factors in 18 U.S.C. § 3553(a), but may exercise discretion to impose a reasonable sentence outside that range; appellate review is for reasonableness.
Reasoning
Booker held that a mandatory Guidelines sentence enhanced by judge-found facts, other than prior convictions, violates the Sixth Amendment when those facts were neither admitted by the defendant nor found by a jury beyond a reasonable doubt. Booker’s remedy severed the statutory provision making the Guidelines mandatory, not the Sentencing Reform Act as a whole.
Section 3553(a) remains operative and directs sentencing courts to consider the applicable Guidelines range and pertinent Sentencing Commission policy statements. Accordingly, a court ordinarily must still calculate the Guidelines range in the same manner as before Booker, even though it no longer must sentence within that range.
Under the advisory system, the Sixth Amendment does not prevent a judge from finding sentencing facts by a preponderance of the evidence. A within-Guidelines sentence generally requires little explanation when the court states that it has selected that sentence; a non-Guidelines sentence requires specific, case-centered reasons sufficient to permit appellate review for reasonableness.
The appellate court emphasized that primary responsibility for sentencing rests with the district court. If the court correctly follows the sentencing procedure, considers the governing factors, and gives suitable reasons for its decision, the appellate court will afford the resulting sentence substantial deference.
Issue #5
Whether Mares was entitled to resentencing because the district court imposed a mandatory-Guidelines sentence enhanced by judge-found facts, although he did not raise a Booker objection below.
Holding
No. Although Mares established plain Booker error, he did not show a reasonable probability that the error affected his sentence and therefore failed the third prong of plain-error review.
Reasoning
An unpreserved Booker claim is reviewed under Federal Rule of Criminal Procedure 52(b). Mares satisfied the first two plain-error elements because the district court increased his Guidelines range based on its own finding that he possessed ammunition in connection with an armed robbery, and Booker made the constitutional defect in that mandatory procedure clear.
To establish that an error affected substantial rights, a defendant bears the burden of showing a probability sufficient to undermine confidence in the outcome. In the Booker context, that means demonstrating a reasonable probability that the sentencing judge would have imposed a significantly different sentence under an advisory, rather than mandatory, Guidelines system.
The record did not reveal what the sentencing judge would have done had the Guidelines been advisory. The statutory-maximum sentence of 120 months, rather than the bottom of the 110-to-120-month effective range, did not itself establish that the judge would have chosen a different sentence. With the effect of the error uncertain, Mares could not carry his burden.
The court rejected an approach that would remand so the district judge could say whether an advisory regime would have produced a materially different sentence. In the Fifth Circuit’s view, Supreme Court plain-error doctrine places the obligation to decide prejudice on the appellate court and does not authorize a remand merely to develop a record on that issue.