United States v. Hernandez-Hernandez

168 F. App'x 632

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-41630 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN HERNANDEZ-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-529-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Juan Hernandez-Hernandez appeals his guilty-plea conviction

and sentence for being found in the United States, without

permission, following deportation. See 8 U.S.C. § 1326(a), (b).

Although Hernandez-Hernandez signed a waiver provision as part of

his plea agreement, we need not determine the effect of that

waiver because Hernandez-Hernandez cannot prevail on the merits

of his appellate arguments.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41630 -2-

For the first time on appeal, Hernandez-Hernandez argues

that the sentencing provisions in § 1326(b) are unconstitutional.

Hernandez-Hernandez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Hernandez-Hernandez 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). Hernandez-Hernandez

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.

Also for the first time on appeal, Hernandez-Hernandez

argues that the district court erred when it sentenced him

pursuant to the mandatory United States Sentencing Guidelines

held unconstitutional in United States v. Booker, 543 U.S. 220

(2005). Application of the Sentencing Guidelines in their

mandatory form constitutes error that is plain. United States v.

Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,

126 S. Ct. 267 (2005). However, nothing in the record indicates

that the district court would have imposed a different sentence

if it had known that it was not bound by the sentencing

guidelines. Accordingly, district court’s error did not affect No. 04-41630 -3-

Hernandez-Hernandez’s substantial rights. See id. at 733-34.

Hernandez-Hernandez has not established reversible plain error.

The judgment of the district court is AFFIRMED.