United States v. Cavazos-Medrano

145 F. App'x 78

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. 04-41067 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO CAVAZOS-MEDRANO, also known as Juan Rodriguez-Sanchez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-132-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Sergio Cavazos-Medrano appeals his sentence following his

guilty-plea conviction of illegal reentry, in violation of

8 U.S.C. § 1326(a) and (b). The district court sentenced him to

46 months of imprisonment, two years of supervised release, and a

$100 special assessment.

For the first time on appeal, Cavazos-Medrano argues that,

under United States v. Booker, 125 S. Ct. 738 (2005), this court

must vacate his sentence and remand for resentencing because the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41067 -2-

mandatory guideline regime was in place at the time of his

sentencing. An unpreserved challenge to the application of the

formerly mandatory sentencing guidelines is reviewed for plain

error. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733

(5th Cir. 2005), petition for cert. filed (July 25, 2005) (No.

05-5556).

The district court’s application of the guidelines in their

mandatory form constituted error that is “plain” for purposes of

satisfying the first two prongs of the plain error analysis. Id.

However, Cavazos-Medrano bears the burden of demonstrating “that

the sentencing judge--sentencing under an advisory scheme rather

than a mandatory one--would have reached a significantly

different result.” See United States v. Mares, 402 F.3d 511, 521

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No.

04-9517). Cavazos-Medrano has not made such a showing.

Cavazos-Medrano also argues that 8 U.S.C. § 1326(b) is

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466

(2000), because it does not require the fact of a prior felony or

aggravated-felony conviction to be charged in the indictment and

proved beyond a reasonable doubt. As Cavazos-Medrano concedes,

this argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), and Almendarez-Torres was not

overruled by Apprendi. See United States v. Izaguirre-Flores,

405 F.3d 270, 277 (5th Cir. 2005), petition for cert. filed (July No. 04-41067 -3-

22, 2005) (No. 05-5469). Accordingly, the judgment of the

district court is AFFIRMED.