United States v. Alcantar-Saldana

145 F. App'x 49

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 17, 2005

Charles R. Fulbruge III Clerk No. 04-51446 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO ALCANTAR-SALDANA, also known as Carlos Morales-Saldana,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-1524-ALL-PRM --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Sergio Alcantar-Saldana, also known as Carlos Morales-

Saldana, pleaded guilty to reentry after deportation in violation

of 8 U.S.C. §§ 1326(a) and (b) and was sentenced to 27 months of

imprisonment and three years of supervised release. He appeals

his conviction and sentence.

For the first time on appeal, Alcantar-Saldana contends that

he was illegally sentenced pursuant to the formerly-mandatory

sentencing guidelines regime, in violation of United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-51446 -2-

Booker, 125 S. Ct. 738 (2005). Sentencing a defendant pursuant

to a mandatory guidelines scheme, standing alone, constitutes

“Fanfan” error, and such an error is “plain.” See Booker, 125

S. Ct. at 769; United States v. Valenzuela-Quevedo, 407 F.3d 728,

733 (5th Cir. 2005), petition for cert. filed (July 25, 2005)

(No. 05-5556). Alcantar-Saldana argues that he has made this

showing based on the district court’s comments at sentencing.

Alcantar-Saldana mischaracterizes the sentencing judge’s comments

and takes them out of context. The judge’s comments were clearly

directed to the harshness of the immigration laws, which make it

illegal to return to the United States without obtaining

permission after having been deported. The judge’s comments did

not refer to the sentencing guidelines at all. There is nothing

in the judge’s comments which indicate that the judge would have

sentenced Alcantar-Saldana below the guideline range if he had

that discretion. “[T]here is no indication in the record from

the sentencing judge’s remarks or otherwise” that the court would

have imposed a different sentence under an advisory guidelines

regime. United States v. Mares, 402 F.3d 511, 522 (5th Cir.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

Because Alcantar-Saldana has not shown that the error affected

his “substantial rights,” see id. at 521, he has not demonstrated

plain error.

Alcantar-Saldana also argues that, under Apprendi v. New

Jersey, 530 U.S. 466 (2000), and its progeny, 8 U.S.C. § 1326(b) No. 04-51446 -3-

is unconstitutional because it permits a sentencing judge to

increase a sentence beyond the statutory maximum based on a

factor that need not be submitted to a jury for proof or admitted

by the defendant. Alcantar-Saldana concedes that this argument

is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998), but he seeks to preserve the issue for possible

Supreme Court review. This court must follow Almendarez-Torres

“‘unless and until the Supreme Court itself determines to

overrule it.’” United States v. Izaguirre-Flores, 405 F.3d 270,

277-78 (5th Cir. 2005) (citation omitted), petition for cert.

filed (July 22, 2005) (No. 05-5469).

AFFIRMED.