United States v. Medina-Rodriguez

144 F. App'x 434

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. 04-40791 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMILIO MEDINA-RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-167-1 --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Emilio Medina-Rodriguez (Medina) pleaded guilty to illegal

reentry after deportation and was sentenced to 24 months of

imprisonment, three years of supervised release, and a $100

special assessment.

Medina argues for the first time on appeal that, in light of

the Supreme Court’s decision in United States v. Booker, 125 S.

Ct. 738 (2005), his sentence should be vacated and his case

should be remanded for resentencing because the district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40791 -2-

pronounced sentence under a regime in which the Federal

Sentencing Guidelines were considered mandatory. He contends

that he can show plain error because the district court’s error

was structural and, in the alternative, because the error should

be presumed to have affected his substantial rights. However,

these arguments are foreclosed. See United States v. Martinez-

Lugo, 411 F.3d 597, 601 (5th Cir. 2005); United States v.

Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), petition for

cert. filed (July 11, 2005) (No. 05-5297).

Medina also argues that there is a reasonable probability

that the district court would have imposed a lower sentence if

application of the Sentencing Guidelines had not been mandatory.

In support of this argument, he notes the fact that the district

court sentenced him at the low end of the guideline range and the

fact that the district court could consider his strong family

ties in the United States if the court were not required to apply

the guidelines.

The district court’s imposition of Medina’s sentence

pursuant to a mandatory application of the Sentencing Guidelines

constituted an error that was plain. See Martinez-Lugo, 411 F.3d

at 600. However, Medina’s sentence at the low end of the

guideline range does not alone indicate that the district court

would have sentenced him differently under an advisory sentencing

scheme. See United States v. Bringier, 405 F.3d 310, 318 n.4

(5th Cir. 2005), petition for cert. filed (July 26, 2005) No. 04-40791 -3-

(No. 05-5535). Furthermore, nothing in the sentencing transcript

indicates that the district court would sentence Medina

differently on the basis of family ties if application of the

Guidelines were not mandatory. Accordingly, Medina has failed to

show that the district court’s plain error affected his

substantial rights. See Martinez-Lugo, 411 F.3d at 600-01.

Medina also argues for the first time on appeal that the

sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional on their face and as applied in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Medina acknowledges

that his argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the issue

for Supreme Court review. As Medina concedes, this issue is

foreclosed. See Apprendi, 530 U.S. at 489-90; United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

AFFIRMED.