United States v. Perez-Marquez

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 24, 2005

Charles R. Fulbruge III Clerk No. 04-51035 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE RENE PEREZ-MARQUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas (3:03-CR-2345-ALL-KC) --------------------

Before JONES, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jose Rene Perez-Marquez (“Perez”) appeals

his 41-month sentence imposed following his guilty-plea conviction

for illegal reentry into the United States following deportation.

Citing United States v. Booker, 125 S. Ct. 738 (2005), he argues,

for the first time on appeal, that the district court erred in

sentencing him under a mandatory guideline scheme.

As Perez did not raise his Booker argument in the district

court, we review this issue for plain error. See United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005). The

district court committed error that is plain when it sentenced

Perez under a mandatory guideline scheme. See id. at 733; United

States v. Martinez-Lugo, __ F.3d __, No. 04-40478, 2005 WL 1331282

*2 (5th Cir. June 7, 2005). Perez fails, however, to meet his

burden of showing that the district court’s error affected his

substantial rights. See Valenzuela-Quevedo, 407 F.3d at 733-34;

United States v. Mares, 402 F.3d 511, 521 (5th Cir.), petition for

cert. filed (Mar. 31, 2005) (No. 04-9517).

As Perez concedes, his constitutional argument that his

sentence, which was enhanced under 8 U.S.C. § 1326(b) for a prior

aggravated felony conviction, is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998). See Apprendi v. New Jersey,

530 U.S. 466, 489-90 (2000); United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000). Accordingly, Perez’s sentence is

AFFIRMED.