United States v. Hernandez-Grimaldo

141 F. App'x 331

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. 04-40640 c/w No. 04-40658 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO HERNANDEZ-GRIMALDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-97-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

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 Hernandez-Grimaldo under a mandatory sentencing

guidelines regime. See United States v. Mares, 402 F.3d 511,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40640 c/w No. 04-40658 -2-

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 (1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-490

(2000);

Hernandez-Grimaldo has shown no reversible error in the

district court’s judgment. Consequently, that judgment is

AFFIRMED.