United States v. Gonzalez-Lopez

140 F. App'x 578

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 18, 2005
• Docket: 04-40384, 04-40386
• Status: Unpublished

Opinion

PER CURIAM: *

Mario Alberto Gonzales-Lopez (Gonzalez), appeals the 57-month sentence imposed after he pleaded guilty to one count of illegal reentry into the United States. See 8 U.S.C. § 1826. Gonzales abandons his appeal from the revocation of supervised release that arose from the illegal reentry. See United States v. Willingham, 310 F.3d 367, 371 (5th Cir.2002) (issues not briefed on appeal are abandoned).

Gonzalez contends that 8 U.S.C. § 1326(b) is unconstitutional and that this court should vacate his sentence and remand his case for resentencing to no more than two years in prison under § 1326(a). As he concedes, this contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Gonzalez also contends that he is entitled to resentencing because the district court sentenced him under a mandatory application of the federal sentencing guidelines prohibited by United States v. Booker, — U.S. -,---, -, 125 S.Ct. 738, 756-57, 769, 160 L.Ed.2d 621 (2005). We review for plain error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.2005), petition for cert, filed (July 25, 2005) (No. 05-5556). Although there was an error under Booker, Gonzalez fails to “demonstrate a probability sufficient to undermine confidence in the outcome ... that the district judge would have imposed a different sentence” under advisory guidelines. Valenzuela-Quevedo, 407 F.3d at 733 (internal quotation marks and citation omitted). Gonzalez thus fails to show that the error affected his substantial rights as he must do to meet the plain-error standard. See id.; United States v. Mares, 402 F.3d 511, 502, 521-22 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.