United States v. Ramirez-Garcia

141 F. App'x 324

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. 03-41044 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE RAMIREZ-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:02-CR-1404-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Ramirez-Garcia appeals the sentence imposed following

his guilty-plea conviction for illegal reentry after deportation

following a conviction for an aggravated felony, in violation of

8 U.S.C. § 1326. As Ramirez-Garcia concedes, his argument that

the sentencing provisions in 8 U.S.C. § 1326(a) and (b) are

unconstitutional 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).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41044 -2-

Ramirez-Garcia argues, for the first time on appeal, that

the district court erred in sentencing him under a mandatory

sentencing guidelines scheme, citing United States v. Booker,

125 S. Ct. 738, 756 (2005). He acknowledges that the argument is

reviewed for plain error but contends that prejudice should be

presumed.

Plain error is the correct standard of review. See United

States v. Malveaux, 411 F.3d 558, 560 (5th Cir. 2005), petition

for cert. filed (July 11, 2005) (No. 05-5297). The district

court committed error that is plain when it sentenced Ramirez-

Garcia under a mandatory sentencing guidelines regime. See

United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.

2005), petition for cert. filed (July 25, 2005) (No. 05-5556);

United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.

2005). Ramirez-Garcia, however, fails to meet his burden of

showing that the district court’s error affected his substantial

rights. See Valenzeuela-Quevedo, 407 F.3d at 733-34; United

States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005), petition for

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

The district court’s judgment is AFFIRMED.