United States v. Hernandez-Hernandez

145 F. App'x 79

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. 04-41069 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IRINEO HERNANDEZ-HERNANDEZ, also known as Efren Hernandez-Hernandez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-230-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Irineo Hernandez-Hernandez (Hernandez) appeals the sentence

imposed after he pleaded guilty to illegally reentering the

United States in violation of 8 U.S.C. § 1326(a), (b)(1) and

(b)(2). Because Hernandez had been deported subsequent to an

aggravated felony conviction, his offense level was enhanced by

16 points under the Sentencing Guidelines.

As Hernandez concedes, his contention that the treatment of

prior convictions as sentencing factors rather than offense

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41069 -2-

elements under 18 U.S.C. § 1326(b)(1), (b)(2) is unconstitutional

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

(1998). He raises the arguments solely to preserve them for

further review.

Hernandez also argues that his sentence should be vacated

pursuant to United States v. Booker, 125 S. Ct. 738 (2005),

because it was imposed under a mandatory Sentencing Guidelines

regime. As Hernandez did not raise this argument in the district

court, we review for plain error. See United States v. Mares,

402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517).

Sentencing a defendant pursuant to a mandatory Guidelines

scheme absent a Sixth Amendment violation, as occurred in this

case, constitutes error that is plain, i.e., obvious. See United

States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005).

However, Hernandez cannot demonstrate that the error affected his

substantial rights as required under plain error’s third prong.

We reject his argument that such error is structural or

presumptively prejudicial for purposes of the third plain error

step. See id. at 601. Rather, we employ the same analysis set

forth in Mares. See id.

Contrary to Hernandez’s contentions, there is no indication

in the record that the district court would have imposed a lower

sentence under an advisory system. See id. The fact that the

district court sentenced him to the lowest term within the No. 04-41069 -3-

Guideline range, without more, is “no indication that the judge

would have reached a different conclusion under an advisory

scheme.” United States v. Bringier, 405 F.3d 310, 317 & n.4 (5th

Cir. 2005), petition for cert. filed (July 26, 2005) (No.

05-5535). In addition, the district court gave no indication

that, absent the mandatory nature of the Guidelines, it would

have considered Hernandez’s cultural assimilation a basis for

imposing a lower sentence. To the contrary, the district court

stated that a serious sentence was warranted given Hernandez’s

history of violent crime, his unlawful reentry, and his

recidivism.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.