United States v. Morales-Navarro

144 F. App'x 435

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. 04-40924 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

RUDY ARMANDO MORALES-NAVARRO, also known as Benito Deras Aguirre,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-128-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Rudy Armando Morales-Navarro appeals his sentence imposed

following his guilty plea to illegally re-entering the United

States after having been deported, in violation of 8 U.S.C.

§ 1326. The district court sentenced Morales-Navarro to 46

months of imprisonment and two years of supervised release.

Morales-Navarro asserts that, under Apprendi v. New Jersey,

530 U.S. 466 (2000), and its progeny, 8 U.S.C. § 1326(b) is

unconstitutional because it permits a sentencing judge to

increase a sentence beyond the statutory maximum based on a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40924 -2-

factor that need not be submitted to a jury for proof or admitted

by the defendant. Morales-Navarro concedes that this argument is

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

235 (1998), but he seeks to preserve the issue for possible

Supreme Court review. This court must follow Almendarez-Torres

“‘unless and until the Supreme Court itself determines to

overrule it.’” United States v. Izaguirre-Flores, 405 F.3d 270,

277-78 (5th Cir. 2005) (citation omitted), petition for cert.

filed (July 22, 2005) (No. 05-5469).

For the first time on appeal, Morales-Navarro argues that

his sentence was unconstitutional because it was enhanced

pursuant to the mandatory Sentencing Guidelines regime rejected

in United States v. Booker, 125 S. Ct. 738 (2005). Morales-

Navarro has not established plain error with regard to his Booker

claim because he has not established that his sentence affected

his substantial rights. See United States v. Mares, 402 F.3d

511, 520-22 (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). Morales-Navarro also argues that the error

was a “structural” one that is not susceptible to plain-error

analysis or, alternatively, that plain-error prejudice should be

presumed. We have rejected such arguments. United States v.

Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005).

Accordingly, the district court’s judgment is AFFIRMED.