United States v. Mendoza

145 F. App'x 910

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. 04-41451 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODRIGO MENDOZA,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:04-CR-291-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Rodrigo Mendoza appeals his conviction and 20-month sentence

for being unlawfully present in the United States following

removal. For the first time on appeal, Mendoza argues that the

district court erred in imposing a sentence under a mandatory

guideline scheme, in violation of United States v. Booker,

125 S. Ct. 738, 756-57 (2005). He contends that the error is

structural and that prejudice should be presumed.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41451 -2-

We review for plain error. See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition

for cert. filed (July 25, 2005) (No. 05-5556). To obtain relief

under the plain error standard, Mendoza must show: (1) that

there was an error; (2) that the error was plain; and (3) the

error affected his substantial rights. See United States v.

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

filed (Mar. 31, 2005) (No. 04-9517). Even if these requirements

are met, this court has the discretion to correct the plain error

and will exercise that discretion only if “the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks and citation

omitted).

Mendoza’s contention that the sentencing error was

structural and that he thus need not show 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). Because there is no indication in the record, based on

the district judge’s remarks or otherwise, that provides any

indication that the district court would likely have reached a

different conclusion if sentencing under the Booker advisory

regime, Mendoza has failed to satisfy his burden of establishing

plain error. See Mares, 402 F.3d at 522.

Mendoza also argues, citing Apprendi v. New Jersey, 530 U.S.

466 (2000), that the “felony” and “aggravated felony” provisions No. 04-41451 -3-

of 8 U.S.C. § 1326(b)(1) & (2) are unconstitutional. He

acknowledges that this argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998), but he seeks to

preserve it for possible Supreme Court review.

Apprendi did not overrule Almendarez-Torres. Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). This court must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Dabeit, 231 F.3d at 984 (internal

quotation and citation omitted); see also Randell v. Johnson,

227 F.3d 300, 301 (5th Cir. 2000) (noting that the Supreme Court

has admonished lower courts to follow directly applicable

precedent even if it appears weakened by subsequent decisions).

Mendoza’s argument is foreclosed.

AFFIRMED.