United States v. Gandarilla-Hernandez

157 F. App'x 754

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 14, 2005
• Docket: 04-41735
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 14, 2005

Charles R. Fulbruge III Clerk No. 04-41735 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS GANDARILLA-HERNANDEZ, also known as Jose Jorge Gutierrez-Hernandez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-701-ALL --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Carlos Gandarilla-Hernandez (“Gandarilla”) appeals the 33-

month sentence he received after pleading guilty to illegally

reentering the U.S. after having been previously deported

following an aggravated felony conviction, in violation of 8

U.S.C. § 1326. He argues, for the first time on appeal, that the

district court erred in imposing his sentence under a mandatory

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

S. Ct. 738, 756 (2005). The argument is reviewed for plain

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41735 -2-

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

(5th Cir.), cert. denied, 126 S. Ct. 267 (2005).

Although Gandarilla’s sentence, imposed under the formerly

mandatory version of the sentencing guidelines, constitutes error

that is plain, the claim fails because, as Gandarilla concedes,

there was no effect on his substantial rights; there is no

indication from the record that the district court would have

imposed a different sentence under an advisory guidelines scheme.

See id.; United States v. Mares, 402 F.3d 511, 517-18, 521 (5th

Cir.), cert. denied, 126 S. Ct. 43 (2005). Gandarilla’s argument

that the error is structural and presumptively prejudicial is

without merit. See United States v. Martinez-Lugo, 411 F.3d 597,

601 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005); United

States v. Malveaux, 411 F.3d 558, 561 & n.9 (5th Cir.), cert.

denied, 126 S. Ct. 194 (2005).

Gandarilla’s constitutional challenge to 8 U.S.C. § 1326(b)

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

224, 235 (1998). Although Gandarilla 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). Gandarilla properly

concedes that his argument is foreclosed in light of Almendarez- No. 04-41735 -3-

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

it for further review.

The district court’s judgment is AFFIRMED.