United States v. Hernandez-Grimaldo

145 F. App'x 52

Opinion

PER CURIAM:

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Francisco Hernandez-Grimaldo appeals his sentence following his guilty-plea conviction for illegal reentry into the United States. Hernandez-Grimaldo argues that the district court erred in sentencing him under a mandatory sentencing guidelines scheme. He acknowledges that this claim is reviewed for plain error only.

The district court committed error that is plain by sentencing HernandezGrimaldo under a mandatory sentencing guidelines regime. See United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for 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). Nevertheless, Hernandez-Grimaldo has not carried his burden of showing that the district court’s error affected his substantial rights. See Valenzuela-Quevedo, 407 F.3d at 733-34; Mares, 402 F.3d at 521. Hernandez-Grimaldo’s contention that this error is structural and gives rise to a presumption of prejudice is unavailing. See United States v. Malveaux, 411 F.3d 558, 560 n. 9 (5th Cir.2005), petition for cert. filed (July 11, 2005) (No. 05-5297); see also United States v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir.2005). Hernandez-Grimaldo has not shown that he should receive relief on this claim.

Hernandez-Grimaldo’s argument that the sentencing provisions in 8 U.S.C. § 1326(b) are unconstitutional is, as he concedes, foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000);

Hemandez-Grimaldo has shown no reversible error in the district court’s judgment. Consequently, that 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.