United States v. Ramos-Lucio

144 F. App'x 431

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. 04-40691 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO RAMOS-LUCIO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-103-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Pedro Ramos-Lucio appeals his sentence imposed following his

guilty plea to illegal reentry. He was sentenced to 18 months of

imprisonment and one year of supervised release. He argues that,

in light of United States v. Booker, 125 S. Ct. 738 (2005), his

sentence is invalid because the district court applied the

Sentencing Guidelines as if they were mandatory. We review for

plain error. United States v. Mares, 402 F.3d 511, 513, 520-22

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40691 -2-

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).

Ramos-Lucio is unable to establish plain error with regard

to his Booker claim because he cannot establish that being

sentenced under a mandatory Guidelines scheme affected his

substantial rights. The record does not indicate that the

district court “would have reached a significantly different

result” under a sentencing scheme in which the Guidelines were

advisory only. See Mares, 402 F.3d at 520-22;

Valenzuela-Quevedo, 407 F.3d at 733-34.

Ramos-Lucio also asserts that the “felony” and “aggravated

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

unconstitutional. He acknowledges that his argument is

foreclosed, but he seeks to preserve the issue for possible

Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.

466 (2000). This issue is foreclosed. See Almendarez-Torres v.

United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000).

Accordingly, the judgment of the district court is AFFIRMED.