United States v. Alvarado-Velasquez

136 F. App'x 658

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 22, 2005

Charles R. Fulbruge III Clerk No. 04-41213 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAUL ALVARADO-VELASQUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-329-ALL --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Raul Alvarado-Velasquez (“Alvarado”) appeals the 37-month

sentence of imprisonment imposed following his guilty-plea

conviction of one count of being found illegally in the United

States following removal. See 8 U.S.C. § 1326(a), (b).

Alvarado, relying on Blakely v. Washington, 124 S. Ct. 2531

(2004), argues that the district court violated his rights under

the Sixth Amendment by enhancing his sentence by 16 levels under

U.S.S.G. § 2L1.2(b)(1)(A)(i). The Sixth Amendment holding of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41213 -2-

Blakely applies to the federal sentencing guidelines. See United

States v. Booker, 125 S. Ct. 738, 746 (2005).

Because Alvarado did not raise his argument in the district

court, our review is for plain error only. See United States v.

Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517). Our review of the record

reveals no indication that the district court, sentencing under

an advisory scheme rather than a mandatory one, would have

reached a significantly different result as to Alvarado’s

sentence. See id. at 521. Because Alvarado cannot establish

that his substantial rights were affected, he cannot establish

plain error. See id. Accordingly, the judgment of the district

court is AFFIRMED.