United States v. Gamboa-Fierro

145 F. App'x 52

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. 04-41342 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO GAMBOA-FIERRO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:04-CR-225-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Roberto Gamboa-Fierro appeals from his guilty-plea

conviction for illegal reentry following deportation. For the

first time on appeal, Gamboa-Fierro argues that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Gamboa-Fierro concedes that this argument is foreclosed

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

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41342 -2-

Also for the first time on appeal, Gamboa-Fierro argues that

the district court erred in sentencing him under a mandatory

sentencing guidelines scheme. See United States v. Booker, 125

S. Ct. 738, 756 (2005). Gamboa-Fierro acknowledges that this

argument is reviewed for plain error, but argues that he does not

have to show that the district court’s error affected his

substantial rights because the error is structural and because

prejudice should be presumed.

Plain error is the correct standard of review. See United

States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),

petition for cert. filed (July 11, 2005) (No. 05-5297). The

district court committed error that is plain when it sentenced

Gamboa-Fierro under a mandatory sentencing guidelines regime.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th

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

05-5556); United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th

Cir. 2005). Gamboa-Fierro fails to meet his burden of showing

that the district court’s error affected his substantial rights.

See Valenzeuela-Quevedo, 407 F.3d at 733-34; United States v.

Mares, 402 F.3d 511, 521 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517); see also United States v.

Bringier, 405 F.3d 310, 317 n.4 (5th Cir. 2005), petition for

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

AFFIRMED.