United States v. Gervacio-Angel

145 F. App'x 78

Opinion

PER CURIAM:

*

Raul Gervacio-Angel appeals his sentence following his guilty-plea conviction of attempted illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to 46 months of imprisonment, three years of supervised release, and a $100 special assessment.

For the first time on appeal, GervacioAngel argues that, under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this court must vacate his sentence and remand for resentencing because the mandatory guideline regime was in place at the time of his sentencing. An unpreserved challenge to the application of the formerly mandatory sentencing guidelines is reviewed for plain error. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.2005), cert. denied — U.S. -, — S.Ct. -, — L.Ed.2d -, 2005 WL 1811485 (2005).

The district court’s application of the guidelines in their mandatory form constituted error that is “plain” for purposes of satisfying the first two prongs of the plain error analysis. Id. Gervacio-Angel also bears the burden of demonstrating “that the sentencing judge — sentencing under an advisory scheme rather than a mandatory one — would have reached a significantly different result.” See United States v. Mares, 402 F.3d 511, 521 (5th Cir.2005), cert. denied — U.S. -, — S.Ct. -, — L.Ed.2d -, 2005 WL 816208 (2005). Gervacio-Angel has not made such a showing.

Gervacio-Angel also argues that 8 U.S.C. § 1326(b) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 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 reasonable doubt. As GervacioAngel concedes, this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and Almendarez-Torres was not overruled by Apprendi. See United States v. Sarmiento-Funes, 374 F.3d 336, 346 (5th Cir.2004). Accordingly, the judgment of the district court is AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under dle limited circumstances set forth in 5th Cir. R. 47.5.4.