United States v. Enriquez-Castillo

141 F. App'x 339

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. 04-40723 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FILIBERTO ENRIQUEZ-CASTILLO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:03-CR-944-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Filiberto Enriquez-Castillo (Enriquez) appeals his

guilty-plea conviction and sentence for illegal reentry into the

United States following deportation subsequent to a felony

conviction for a crime of violence. For the first time on

appeal, Enriquez argues that 8 U.S.C. § 1326(b) is

unconstitutional on its face and as applied 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40723 -2-

reasonable doubt. As Enriquez acknowledges, his argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), which was not overruled by Apprendi v. New Jersey, 530

U.S. 466, 490 (2000). See Apprendi, 530 U.S. at 489-90; United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Enriquez argues that under Blakely v. Washington, 124 S. Ct.

2531 (2004), the enhancement of his sentence based on his prior

conviction was error. However, United States v. Booker, 125

S. Ct. 738 (2005), reaffirmed the holding in Apprendi that prior

convictions are excluded from the facts that must be admitted or

submitted to the jury. See Booker, 125 S. Ct. at 756. Thus,

Enriquez’s sentence was not affected by a Sixth Amendment

violation. See Booker, 125 S. Ct. at 750, 769.

Enriquez argues that because his sentence was imposed

pursuant to an unconstitutional mandatory guidelines system, it

is unconstitutional and should be vacated. See Booker, 125

S. Ct. at 750, 768-69; see also United States v. Mares, 402 F.3d

511, 518-20 & n.9 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517). We review for plain error. See

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.

2005), petition for cert. filed (July 25, 2005) (No. 05-5556).

The error was plain, meeting the first two prongs of the

plain-error standard. See United States v. Martinez-Lugo, 411

F.3d 597, 600 (5th Cir. 2005). However, Enriquez has not shown

that the error affected his substantial rights. Although the No. 04-40723 -3-

sentence was at the low end of the guideline range, a sentence at

the low end of the guideline range does not alone indicate that

the district court would have sentenced Enriquez differently

under an advisory sentencing scheme. See United States v.

Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005), petition for

cert. filed (July 26, 2005) (No. 05-5535). Furthermore, the

error was not structural and prejudice is not otherwise presumed.

See Martinez-Lugo, 411 F.3d at 601; United States v. Malveaux,

411 F.3d 558, 561 n.9 (5th Cir. 2005), petition for cert. filed,

(July 11, 2005) (No. 05-5297). Nothing in the sentencing

transcript indicates that the district court would have imposed a

lesser sentence had it known that the guidelines were not

mandatory. See Martinez-Lugo, 411 F.3d at 601.

AFFIRMED.