United States v. Escobedo

176 F. App'x 439

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006

Charles R. Fulbruge III Clerk No. 04-40862 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL GUEL-ESCOBEDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:03-CR-1913-ALL --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Gabriel Guel-Escobedo appeals from his guilty-plea

conviction for reentry of a deported alien. For the first time

on appeal, Guel-Escobedo argues that the district court erred by

sentencing him under the mandatory sentencing scheme held

unconstitutional in United States v. Booker, 543 U.S. 220 (2005),

an argument that has been termed “Fanfan error.” United States

v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). He also contends

that Fanfan error is structural in nature.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40862 -2-

Fanfan error meets the first two prongs of the plain error

analysis but is not structural in nature. United States v.

Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S.

Ct. 464 (2005). Because Guel-Escobedo has failed to demonstrate

that the sentencing judge would have reached a different result

if an advisory sentencing scheme had been utilized, his claim of

Fanfan error does not warrant relief. See id. at 601.

Guel-Escobedo’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Guel-Escobedo contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005). Guel-Escobedo properly

concedes that his argument is foreclosed in light of Almendarez-

Torres and circuit precedent, but he raises it here to preserve

it for further review.

Accordingly, the district court’s judgment is AFFIRMED.