United States v. Guevara-Vivanco

145 F. App'x 942

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 17, 2005

Charles R. Fulbruge III Clerk No. 04-40858 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSVALDO GUEVARA-VIVANCO, also known as Gustavo Guevara Betancur,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-14-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Osvaldo Guevara-Vivanco appeals his sentence imposed

following his guilty plea to illegal reentry after deportation.

He was sentenced to five years of imprisonment and three years of

supervised release. He argues that, in light of United States v.

Booker, 125 S. Ct. 738 (2005), his sentence is invalid because

the district court applied the Sentencing Guidelines as if they

were mandatory. We review for plain error. United States v.

Mares, 402 F.3d 511, 513, 520-22 (5th Cir. 2005), petition for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40858 -2-

cert. filed (Mar. 31, 2005) (No. 04-9517); United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition

for cert. filed (July 25, 2005) (No. 05-5556).

Guevara-Vivanco is unable to establish plain error with

regard to his Booker claim because he cannot establish that being

sentenced under a mandatory Guidelines scheme affected his

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 Mares, 402 F.3d at 520-22;

Valenzuela-Quevedo, 407 F.3d at 733-34.

Guevara-Vivanco also asserts that the “felony” and

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

unconstitutional. He acknowledges that his argument is

foreclosed, but he seeks to preserve the issue for possible

Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.

466 (2000). This issue is foreclosed. See Almendarez-Torres v.

United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000).

Accordingly, the judgment of the district court is AFFIRMED.