United States v. Guevara

176 F. App'x 440

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 11, 2006
• Docket: 04-41603
• Status: Unpublished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 April 11, 2006

Charles R. Fulbruge III Clerk No. 04-41603 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS ALBERTO GUEVARA, also known as Marco Antonio Buchid-Villanueva,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-568-ALL --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Luis Alberto Guevara appeals his guilty-plea conviction and

sentence for being an alien found unlawfully present in the

United States after deportation and following a conviction for

an aggravated felony offense. He contends for the first time on

appeal that his sentence violates United States v. Booker, 543

U.S. 220 (2005), because it was imposed pursuant to a mandatory

guidelines scheme, and that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41603 -2-

The Government seeks to enforce the waiver-of-appeal

provision in Guevara’s plea agreement. Due to a difference

between the written terms of the waiver-of-appeal provision and

statements by the district court regarding the scope of this

waiver, we decline to enforce it and proceed to the merits of

Guevara’s appeal.

Because Guevara did not preserve his claims before the

district court, we review only for plain error. See United

States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126

S. Ct. 43 (2005). Guevara’s Booker claim fails because he has

not shown that any error affected his substantial rights.

See United States v. Pennell, 409 F.3d 240, 245 (5th Cir. 2005);

Mares, 402 F.3d at 521. The fact that Guevara was sentenced at

the lowest end of the guidelines range does not indicate that his

sentence would likely have been different under advisory

Guidelines. See United States v. Bringier, 405 F.3d 310, 317-18

& n.4. (5th Cir. 2005), cert. denied, 126 S. Ct. 264 (2005).

Additionally, his contention that the district court’s error is

structural and that prejudice should be presumed is without

merit. See United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th

Cir. 2005), cert. denied, 126 S. Ct. 194 (2005). Because he has

not established plain error, Guevara’s sentence is affirmed.

Guevara’s constitutional challenge to the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2)

is foreclosed by Almendarez-Torres v. United States, 523 U.S. No. 04-41603 -3-

224, 235 (1998). Although Guevara contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding. See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Guevara

properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

The judgment of the district court is AFFIRMED.