United States v. Mendoza-Torres

140 F. App'x 593

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 15, 2005
• Docket: 04-40672
• Status: Unpublished

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 15, 2005

Charles R. Fulbruge III Clerk No. 04-40672 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CECILIO MENDOZA-TORRES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-20-ALL --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Cecilio Mendoza-Torres (“Mendoza”) appeals following his

guilty plea to a charge of being present illegally in the United

States after deportation, in violation of 8 U.S.C. § 1326.

Mendoza argues that the district court misapplied the Sentencing

Guidelines by erroneously characterizing his state felony

conviction for possession of a controlled substance as an

“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1).

Mendoza’s argument is foreclosed by circuit precedent. See

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40672 -2-

United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.

2002); United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir.

2001); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th

Cir. 1997). Jerome v. United States, 318 U.S. 101 (1943), does

not affect the binding precedential value of these opinions.

Mendoza also argues that the “felony” and “aggravated

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

unconstitutional. He acknowledges that his argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998), but he seeks to preserve his argument for further

review in light of Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). Apprendi did not overrule Almendarez-Torres. See

Apprendi, 530 U.S. at 489-90; United States v. Mancia-Perez, 331

F.3d 464, 470 (5th Cir.), cert. denied, 124 S. Ct. 358 (2003).

Mendoza further asserts that, if Almendarez-Torres is overruled

and if Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to

the federal sentencing guidelines, his sentence could not be

enhanced based on his prior convictions, unless they were

submitted to a jury or admitted by him. As noted, Almendarez-

Torres has not been overruled. This court must follow

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Mancia-Perez, 331 F.3d at 470

(internal quotation and citation omitted).

Finally, Mendoza argues that the district court committed

reversible error by imposing a sentence pursuant to the mandatory No. 04-40672 -3-

Federal Sentencing Guidelines system that was held

unconstitutional in United States v. Booker, 125 S. Ct. 738

(2005). Because Mendoza did not raise this objection in the

district court, our review is for plain error. See United States

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

The district court committed error that is plain by

sentencing Mendoza under a mandatory Sentencing Guidelines

scheme. See id.; United States v. Mares, 402 F.3d 511, 520-21

(5th Cir. 2005), petition for cert. filed (U.S. Mar. 31, 2005)

(No. 04-9517). However, Mendoza 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.

Accordingly, the district court’s judgment is AFFIRMED.