United States v. Estrada-Zamora

168 F. App'x 637

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-41680 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEONEL ESTRADA-ZAMORA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-612-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Leonel Estrada-Zamora (Estrada) appeals his 46-month

sentence following his guilty plea conviction of illegal reentry,

in violation of 8 U.S.C. § 1326. Estrada argues for the first

time on appeal that the district court erred in imposing a

sentence under a mandatory guideline scheme, in violation of

United States v. Booker, 543 U.S. 220 (2005). Assuming arguendo

that the written plea agreement does not foreclose review of this

argument, we review it for plain error. See United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41680 -2-

Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.), cert.

denied, 126 S. Ct. 267 (2005); United States v. Mares, 402 F.3d

511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). Estrada

concedes that he cannot demonstrate that the district court would

likely have sentenced him differently under an advisory

sentencing scheme. His argument that this error is structural,

or at least presumptively prejudicial, is foreclosed, see United

States v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir.), cert.

denied, 126 S. Ct. 464 (2005), and his argument that we require

proof by a preponderance of the evidence that this error affected

his substantial rights lacks merit. See Mares, 402 F.3d at 521;

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

Estrada’s constitutional challenge to § 1326 is foreclosed

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

Although Estrada 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). Estrada 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.

AFFIRMED.