United States v. Lopez

177 F. App'x 396

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 1, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-41359 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

versus

ANTONIO LOPEZ,

Defendant- Appellant.

------------------------------------------------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-468-ALL -------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

Antonio Lopez appeals his guilty-plea conviction and sentence for being an alien found

illegally in the United States after a prior deportation. He asserts that the district court erred in

imposing a 16-level enhancement to his base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)

because his prior Texas conviction for burglary of a habitation did not constitute a “crime of

violence.” The district court correctly found that Lopez’s prior conviction for burglary of a habitation

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. was a conviction for a crime of violence under § 2L1.2(b)(1)(A)(ii). See United States v. Garcia-

Mendez, 420 F.3d 454, 457 (5th Cir. 2005), cert. denied, ___ S. Ct. ___, 2006 WL 386884 (Feb. 21,

2006)(No. 05-8542).

For the first time on appeal, Lopez asserts that the district court’s belief during sentencing that

the Federal Sentencing Guidelines were mandatory, rather than advisory, is reversible error under

United States v. Booker, 543 U.S. 220 (2005). We review Lopez’s Booker-based challenge for plain

error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th. Cir.), cert. denied, 126 S.

Ct. 267 (2005). Lopez has failed to establish that the error affected his substantial rights. See United

States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.), cert. denied, 126 S. Ct. 264 (2005). Therefore,

he cannot demonstrate plain error.

Lopez also asserts that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)

are unconstitutional. This constitutional challenge to § 1326 is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998). Although Lopez 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). Lopez 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.

The judgment of the district court is thus AFFIRMED.

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