United States v. Orta-Gomez

141 F. App'x 353

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 1, 2005
• Docket: 04-40884
• Status: Unpublished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 1, 2005

Charles R. Fulbruge III Clerk No. 04-40884 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO ORTA-GOMEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-107-ALL --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Eduardo Orta-Gomez (Orta) appeals the sentence imposed

following his guilty-plea conviction for illegal reentry

following deportation. See 8 U.S.C. § 1326. He argues that the

sentence enhancing provisions contained in 8 U.S.C. §§ 1326(b)(1)

and (b)(2) are unconstitutional. This argument is foreclosed by

the Supreme Court’s decision in Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998). Apprendi v. New Jersey, 530

U.S. 466 (2000), did not overrule Almendarez-Torres. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40884 -2-

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

979, 984 (5th Cir. 2000). The Supreme Court’s decisions in

Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States

v. Booker, 125 S. Ct. 738 (2005), did not overrule

Almendarez-Torres. See Booker, 125 S. Ct. at 756; Blakely, 124

S. Ct. at 2536-43. 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 marks and citation omitted).

Orta argues that under Blakely, the enhancement of his

sentence based on his prior conviction was error. In Blakely,

the Supreme Court held that “the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the

basis of facts . . . admitted to by the defendant.” Blakely, 124

S. Ct. at 2537 (emphasis in original). However, Booker

reaffirmed the holding in Apprendi that prior convictions are

excluded from the facts that must be admitted or submitted to the

jury. See Booker, 125 S. Ct. at 756. Thus, Orta’s sentence was

not affected by a Sixth Amendment violation. See Booker, 125

S. Ct. at 750, 769.

Orta argues that because his sentence was imposed pursuant

to an unconstitutional, mandatory guidelines system, it is

unconstitutional and should be vacated. This is the type of

error that was experienced by the other respondent in Booker,

Ducan Fanfan. See Booker, 125 S. Ct. at 750, 768-69; see also No. 04-40884 -3-

United States v. Mares, 402 F.3d 511, 518-20 & n.9 (5th Cir.

2005), petition for cert. filed, No. 04-9517 (U.S. Mar. 31,

2005). Because Orta did not raise this issue below, we review

for plain error only. See United States v. Valenzuela-Quevedo,

407 F.3d 728, 732 (5th Cir. 2005).

The “Fanfan” error was plain, meeting the first two prongs

of the plain error standard. See United States v. Martinez-Lugo,

__ F.3d __, 2005 WL 1331282 at *2 (5th Cir. June 7, 2005). In

order to show that the error meets the third prong and affected

his substantial rights, he must show that it affected the outcome

of the proceedings in the district court. Id. The error was not

structural and prejudice is not otherwise presumed. See id.;

United States v. Malveaux, __ F.3d __, 2005 WL 1320362 at *1 n.9

(5th Cir. Apr. 11, 2005). Orta cannot show that he was

prejudiced by the error because the district court sentenced him

at the midpoint in the guidelines range and nothing in the

sentencing transcript indicates that the district court would

have imposed a lesser sentence if it knew that the guidelines

were not mandatory. See Martinez-Lugo, 2005 WL 1331282 at *2-*3.

AFFIRMED.