United States v. Rodriguez-Escobar

176 F. App'x 436

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 11, 2006
• Docket: 04-20715
• Status: Unpublished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 April 11, 2006

Charles R. Fulbruge III Clerk No. 04-20715 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS RODRIGUEZ-ESCOBAR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-92-1 --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Jose Luis Rodriguez-Escobar pleaded guilty to a one-count

indictment charging him with being an alien found in the United

States after deportation following an aggravated felony

conviction. The district court sentenced Rodriguez-Escobar to 70

months in prison and a three-year term of supervised release.

Rodriguez-Escobar challenges the 16-level sentencing

enhancement he received under U.S.S.G. § 2L1.2(b)(1)(A)(ii),

arguing that the district court erred by finding that his prior

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20715 -2-

Texas conviction for burglary of a habitation constitutes a

“crime of violence.” The district court correctly found that

Rodriguez-Escobar’s prior conviction for burglary of a habitation

was a conviction for a crime of violence. See United States v.

Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert.

denied, 126 S. Ct. 1398 (2006); United States v. Hornsby, 88 F.3d

336, 339 (5th Cir. 1996).

Rodriguez-Escobar argues for the first time on appeal that

his sentence was imposed illegally in light of United States v.

Booker, 543 U.S. 220 (2005). This court’s review is for plain

error. See United States v. Valenzuela-Quevedo, 407 F.3d 728,

732-33 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005); United

States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126

S. Ct. 43 (2005).

After Booker, “[i]t is clear that application of the

Guidelines in their mandatory form constitutes error that is

plain.” Valenzuela-Quevedo, 407 F.3d at 733. To satisfy the

plain error test in light of Booker, Rodriguez-Escobar must

demonstrate that his substantial rights were affected by the

error. See United States v. Infante, 404 F.3d 376, 395 (5th Cir.

2005). There is nothing in the record indicating that the

district court would have imposed a different sentence under an

advisory sentencing guidelines scheme. See United States v.

Bringier, 405 F.3d 310, 317 n.4 (5th Cir.), cert. denied, 126

S. Ct. 264 (2005). Rodriguez-Escobar argues that application of No. 04-20715 -3-

the plain error standard is contrary to the plain error standard

enunciated in United States v. Dominguez Benitez, 542 U.S. 74

(2004). Rodriguez-Escobar’s challenge to the showing required

under Mares and Bringier is unavailing, as one panel may not

overrule the decision of a prior panel absent en banc

reconsideration or a superseding contrary decision of the Supreme

Court. See United States v. Eastland, 989 F.2d 760, 768 n.16

(5th Cir. 1993).

Rodriguez-Escobar’s constitutional challenge to 8 U.S.C.

§ 1326(b) is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998). Although Rodriguez-Escobar contends

that Almendarez-Torres was incorrectly decided and that a

majority of the Supreme Court would overrule Almendarez-Torres in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have

repeatedly rejected such arguments on the basis that Almendarez-

Torres remains binding. See United States v. Garza-Lopez, 410

F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

Rodriguez-Escobar properly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

AFFIRMED.