United States v. Gomez-Garcia

136 F. App'x 664

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 22, 2005

Charles R. Fulbruge III Clerk No. 04-51002 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS GOMEZ-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 2:04-CR-62-1-AML --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Luis Gomez-Garcia appeals his sentence imposed

following his guilty plea to illegal reentry after deportation.

He was sentenced to 77 months of imprisonment and three years of

supervised release. Gomez-Garcia argues that his sentence is

illegal pursuant to United States v. Booker, 125 S. Ct. 738

(2005). Gomez-Garcia has not established plain error with regard

to his Booker claim because he has not established that being

sentenced under a mandatory guidelines scheme affected his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-51002 -2-

substantial rights. The record does not indicate that the

district court “would have reached a significantly different

result” under a sentencing scheme in which the guidelines

were advisory only. See United States v. Mares, 402 F.3d 511,

520-22 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)

(No. 04-9517); United States v. Valenzuela-Quevedo, 407 F.3d 728,

733-34 (5th Cir. 2005); United States v. Malveaux, __F.3d__,

No. 03-41618, 2005 WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).

Gomez-Garcia also asserts that, under the reasoning of

Apprendi v. New Jersey, 530 U.S. 466 (2000), 8 U.S.C. § 1326(b)

is unconstitutional because it treats a prior conviction as an

element of the offense rather than a sentence enhancement. As

Gomez-Garcia concedes, his argument is foreclosed by

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

he seeks to preserve the issue for possible Supreme Court review.

This court must follow Almendarez-Torres “unless and until the

Supreme Court itself determines to overrule it.” United States

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

marks and citation omitted).

Accordingly, the district court’s judgment is AFFIRMED.