United States v. Aguilar-Hernandez

157 F. App'x 755

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 14, 2005
• Docket: 05-40083
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 14, 2005

Charles R. Fulbruge III Clerk No. 05-40083 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO AGUILAR-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-495-ALL --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Ricardo Aguilar-Hernandez appeals the sentence imposed

following his guilty-plea conviction for being unlawfully present

in the United States after removal following a conviction for an

aggravated felony. For the first time on appeal, Aguilar argues

that the district court committed reversible error under United

States v. Booker, 125 S. Ct. 738 (2005), by sentencing him

pursuant to a mandatory application of the sentencing guidelines.

Because Aguilar did not raise this issue below, we review it for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 05-40083 -2-

plain error only. See United States v. Valenzuela-Quevedo, 407

F.3d 728, 732 (5th Cir. 2005), cert. denied, 126 S. Ct. 267

(2005).

Aguilar argues that the district court’s mandatory

application of the sentencing guidelines was plainly erroneous

because the error was structural and because prejudice should

otherwise be presumed. This court has rejected these arguments.

See United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.

2005), cert. denied, 126 S. Ct. 194 (2005).

Aguilar additionally asserts that he would have received a

lesser sentence under an advisory application of the guidelines

because the district court sentenced him at the low end of the

guidelines range. The fact that Aguilar received the minimum

guidelines sentence is not sufficient to show plain error. See

United States v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir.),

cert. denied, 126 S. Ct. 264 (2005). Aguilar “points to no

remarks made by the sentencing judge that raise a reasonable

probability that the judge would have imposed a different

sentence under an advisory scheme,” and we have not identified

any such remarks in the record. United States v. Hernandez-

Gonzalez, 405 F.3d 260, 262 (5th Cir.), cert. denied, 126 S. Ct.

202 (2005). Accordingly, Aguilar has not shown that the district

court committed reversible plain error. See id.

Aguilar’s constitutional challenge to 8 U.S.C. § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, No. 05-40083 -3-

235 (1998). Although Aguilar contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005). Aguilar properly concedes

that his argument is foreclosed in light of Almendarez-Torres and

circuit precedent, but he raises it here to preserve it for

further review.

AFFIRMED.