United States v. Gomez-Graciano

Fifth Circuit

United States v. Gomez-Graciano

136 F. App'x 665

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 23, 2005

Docket04-41295, 04-41296

StatusUnpublished

This text of 136 F. App'x 665 (United States v. Gomez-Graciano) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Gomez-Graciano, 136 F. App'x 665 (5th Cir. 2005).

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PER CURIAM: *

Ysidro Gomez-Graciano (Gomez) appeals the sentence imposed following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. ** He argues, for the first time on appeal, that the district court erred in sentencing him under a mandatory sentencing guidelines scheme, citing United States v. Booker, — U.S. -,-, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005). He acknowledges that the argument is reviewed for plain error but contends that he does not have to demonstrate any effect on 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, - F.3d -, No. 03-41618, 2005 WL 1320362 at *1 n. 9 (5th Cir. Apr.11, 2005). The district court committed error that is plain when it sentenced Gomez under a mandatory sentencing guidelines regime. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.2005); United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). Gomez, however, 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; Mares, 402 F.3d at 521. His argument that Mares was wrongly decided is unavailing. See United States v. Ruff, 984 F.2d 635, 640 (5th Cir. 1993).

As he concedes, Gomez’s argument that the sentencing provisions in 8 U.S.C. § 1326(a) and (b) are unconstitutional is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 *666 L.Ed.2d 350 (1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). The district court’s judgment 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 the limited circumstances set forth in 5th Cir. R. 47.5.4.

**

Gomez does not appeal the revocation of his supervised release or the sentence imposed following revocation based on this offense.

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PER CURIAM: *

Ysidro Gomez-Graciano (Gomez) appeals the sentence imposed following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. ** He argues, for the first time on appeal, that the district court erred in sentencing him under a mandatory sentencing guidelines scheme, citing United States v. Booker, — U.S. -,-, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005). He acknowledges that the argument is reviewed for plain error but contends that he does not have to demonstrate any effect on 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, - F.3d -, No. 03-41618, 2005 WL 1320362 at *1 n. 9 (5th Cir. Apr.11, 2005). The district court committed error that is plain when it sentenced Gomez under a mandatory sentencing guidelines regime. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.2005); United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). Gomez, however, 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; Mares, 402 F.3d at 521. His argument that Mares was wrongly decided is unavailing. See United States v. Ruff, 984 F.2d 635, 640 (5th Cir. 1993).

As he concedes, Gomez’s argument that the sentencing provisions in 8 U.S.C. § 1326(a) and (b) are unconstitutional is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 *666 L.Ed.2d 350 (1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). The district court’s judgment 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 the limited circumstances set forth in 5th Cir. R. 47.5.4.

**

Gomez does not appeal the revocation of his supervised release or the sentence imposed following revocation based on this offense.

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