United States v. Rivera-Ortiz

135 F. App'x 760

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 22, 2005

Charles R. Fulbruge III Clerk No. 04-40748 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

FILIBERTO RIVERA-ORTIZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-91-ALL --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Filiberto Rivera-Ortiz (“Rivera”) 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 Rivera to 60

months of imprisonment and three years of supervised release, as

well as to 10 months in prison for the revocation of a prior

supervised-release term.

For the first time on appeal, Rivera argues that his

sentence was unconstitutional because it was enhanced pursuant to

the mandatory Sentencing Guidelines regime rejected in United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40748 -2-

States v. Booker, 125 S. Ct. 738 (2005). Plain error is the

appropriate standard of review. United States v. Malveaux,

___F.3d___, No. 03-41618, 2005 WL 1320362 (5th Cir. Apr. 11,

2005). Rivera 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). 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. Id. at 521-22; United States v. Valenzuela-

Quevedo 407 F.3d 728, 733 (5th Cir. 2005).

Rivera also 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

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

by the defendant. Rivera 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).

Accordingly, the district court’s judgment is AFFIRMED.