United States v. Rodriguez-Torrez

145 F. App'x 50

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. 04-40398 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTEO RODRIGUEZ-TORREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:03-CR-908-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Timoteo Rodriguez-Torrez appeals his guilty-plea conviction

and sentence for being found in the United States, without

permission, following his conviction of an aggravated felony and

subsequent deportation. See 8 U.S.C. § 1326(a), (b).

For the first time on appeal, Rodriguez-Torrez argues that

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

unconstitutional. Rodriguez-Torrez acknowledges that his

argument is foreclosed by Almendarez-Torres v. United States, 523

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40398 -2-

U.S. 224, 235 (1998), but seeks to preserve the issue for review

in light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

However, Apprendi did not overrule Almendarez-Torres. See

Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000). This court must follow

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Dabeit, 231 F.3d at 984 (internal

quotation marks and citation omitted).

Also for the first time on appeal, Rodriguez-Torrez, relying

on the possibility that Almendarez-Torres will be overruled, as

well as on Blakely v. Washington, 542 U.S. 296 (2004), argues

that the Federal Sentencing Guidelines are unconstitutional

because they permit the enhancement of a sentence based on a

defendant’s prior convictions. The argument fails because

Almendarez-Torres has not been overruled and the enhancement of a

sentence based on prior convictions does not violate the Sixth

Amendment. United States v. Booker, 125 S. Ct. 738, 756 (2005).

Finally, Rodriguez-Torrez argues that the district court

erred by sentencing him under the mandatory Sentencing Guidelines

scheme held unconstitutional in Booker. We review for plain

error. See United States v. Martinez-Lugo, 411 F.3d 597, 600

(5th Cir. 2005). Rodriguez-Torrez has satisfied the first two

prongs of the plain error analysis by showing that the district

court committed error that was plain. See id. The error is not

a structural one, however, and Rodriguez-Torrez has not satisfied No. 04-40398 -3-

the third prong of the plain error analysis by showing that the

error affected his substantial rights. See id. at 600-01.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.