United States v. Lara-Hernanez

142 F. App'x 212

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. 04-40928 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADOR LARA-HERNANEZ, also known as Martin Uribe-Cnchola,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-54-1 --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Salvador Lara-Hernanez appeals his sentence following his

guilty-plea conviction of one charge of illegal reentry into the

United States. Lara-Hernanez 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, but he contends that he can meet this standard.

The district court committed error that is plain by

sentencing Lara-Hernanez under a mandatory sentencing guidelines

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40928 -2-

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, Lara-Hernanez 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. Lara-Hernanez’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). Lara-Hernanez has not shown that

he should receive relief on this claim.

Lara-Hernanez’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); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000).

Lara-Hernanez has shown no reversible error in the district

court’s judgment. Consequently, that judgment is AFFIRMED.