United States v. Gonzalez-Sandoval

141 F. App'x 361

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 26, 2005
• Docket: 04-51036
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 26, 2005

Charles R. Fulbruge III Clerk No. 04-51036 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR SIMON GONZALEZ-SANDOVAL, also known as Jose Herlindo Zuniga, Jr.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-679-ALL-PRM --------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Oscar Simon Gonzalez-Sandoval (“Gonzalez”) appeals following

his guilty-plea to illegally re-entering the United States after

previously being deported, in violation of 8 U.S.C. § 1326.

Gonzalez argues that his sentence violates United States v.

Booker, 125 S. Ct. 738 (2005), because it was based upon facts

that were neither submitted to a jury nor admitted.

Specifically, he contends that the district court increased his

criminal history points by finding that the instant offense was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-51036 -2-

committed less than two years after his release from custody in a

prior offense. He also argues that his sentence is

unconstitutional because it was imposed pursuant to a mandatory

application of the sentencing guidelines. The Government

concedes that error occurred but argues that Gonzalez cannot meet

his burden under the plain error standard of review.

Because Gonzalez did not raise these issues in the district

court, this court reviews the arguments for plain error. See

United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),

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

United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.

2005). Under this standard, Gonzalez must show 1) an error; 2)

that is clear or obvious; 3) that affected his substantial

rights; and 4) that seriously affected the fairness, integrity or

public reputation of his judicial proceedings. United States v.

Olano, 507 U.S. 725, 732-35 (1993).

Gonzalez fails to show that the district court would likely

have sentenced him differently under the Booker advisory scheme.

At best, it is uncertain from the district court’s remarks at

sentencing that it would have reached a different conclusion.

Because Gonzalez has not demonstrated that his substantial rights

were affected, his arguments fail to survive plain-error review.

See Valenzuela-Quevedo, 407 F.3d at 733-34; Mares, 402 F.3d at

521-22; cf. United States v. Pennell, 409 F.3d 240, 245-46 (5th

Cir. 2005). No. 04-51036 -3-

Gonzalez also argues that his sentence violated due process

and should have been limited to the statutory maximum of two

years because his indictment did not allege the fact of his prior

conviction. Gonzalez correctly concedes that his argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), and he raises the issue to preserve it for Supreme Court

review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi, 530

U.S. at 489-90; United States v. Mancia-Perez, 331 F.3d 464, 470

(5th Cir.), cert. denied, 540 U.S. 935 (2003). This court must

follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.” Mancia-Perez, 331 F.3d at 470

(internal quotation marks and citation omitted).

AFFIRMED.