United States v. Bernal-Ceron

135 F. App'x 762

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 26, 2005
• Docket: 04-50960
• Status: Unpublished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 May 26, 2005

Charles R. Fulbruge III Clerk No. 04-50960 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO ENRIQUE BERNAL-CERON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 1:04-CR-163-ALL-SS --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Pedro Enrique Bernal-Ceron (“Bernal”) appeals his sentence

following his guilty plea to an indictment charging that he

illegally reentered the United States after having been deported,

in violation of 8 U.S.C. § 1326. Bernal first argues that the

three-year term of supervised release imposed by the district

court violated due process because the indictment to which he

pleaded guilty failed to include the aggravated-felony provision

of 8 U.S.C. § 1326(b), under which the three-year term was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-50960 -2-

imposed. He acknowledges that the Supreme Court rejected his

argument in Almendarez-Torres v. United States, 523 U.S. 224

(1998), but he argues that Apprendi v. New Jersey, 530 U.S. 466

(2000), and subsequent decisions have cast doubt on the

continuing validity of Almendarez-Torres.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; United States v. Sarmiento-Funes, 374 F.3d

336, 346 (5th Cir. 2004). This court must follow Almendarez-

Torres “‘unless and until the Supreme Court itself determines to

overrule it.’” United States v. Mancia-Perez, 331 F.3d 464, 470

(5th Cir.)(citation omitted), cert. denied, 540 U.S. 935 (2003).

Accordingly, Bernal has not established error, plain or

otherwise, with respect to his three-year term of supervised

release sentence under 8 U.S.C. § 1326(b). See United States v.

Vonn, 535 U.S. 55, 58-59 (2002).

Bernal next argues, for the first time on appeal that, under

United States v. Booker, 125 S. Ct. 738, 756 (2005), the two-

point increase in his criminal history for having committed the

instant offense within two years of being released from his prior

sentence was unconstitutional. Bernal acknowledges that because

he is raising the argument for the first time on appeal, review

is for plain error.

An unpreserved constitutional challenge to the computation

of a defendant’s sentence under the formerly mandatory sentencing

guidelines is reviewed for plain error. United States v. Mares, No. 04-50960 -3-

402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517). Because his sentence was enhanced

based on findings made by the judge that went beyond the facts

admitted by Bernal or found by a jury, Bernal has established

Booker error that is “plain.” See United States v. Bringier,

F.3d , No. 04-30089, 2005 WL 730073 at *5 (5th Cir. Mar. 31,

2005). Bernal must nevertheless show that the court’s error

affected his substantial rights. Id. To make such a showing,

Bernal “bears the burden of demonstrating a probability

sufficient to undermine confidence in the outcome.” Id. Bernal

has failed to make such a showing. See id. at *5 n.4.

Bernal also makes the concomitant argument that, as a

general matter, the district court erred under Booker by treating

the guideline range as binding. “It is clear after Booker that

application of the [g]uidelines in their mandatory form

constitutes error that is plain.” United States v. Valenzuela-

Quevedo, F.3d , No. 03-41754, 2005 WL 941353 at *4 (5th Cir.

Apr. 25, 2005). However, as in cases involving a Sixth Amendment

violation under Booker, in order to show a violation of his

substantial rights, the defendant must show an error that

affected the outcome of the district court proceedings, and he

must demonstrate a probability sufficient to undermine confidence

in the outcome. Id. (citing Mares, 402 F.3d at 520-21). As

discussed above, Bernal has failed to make such a showing.

Accordingly, the judgment of the district court is AFFIRMED.