United States v. Gervacio-Angel

141 F. App'x 385

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. 04-40856 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAUL GERVACIO-ANGEL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-368-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

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, Gervacio-Angel argues that,

under United States v. Booker, 125 S. Ct. 738 (2005), this court

must vacate his sentence and remand for resentencing because the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40856 -2-

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

05-5556).

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), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

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

(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 Gervacio-Angel concedes,

this argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (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.