United States v. Rosas-Diaz

135 F. App'x 746

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. 04-40872 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO ROSAS-DIAZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-252-1 --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Fernando Rosas-Diaz (Rosas) appeals his guilty-plea

conviction and sentence for illegal reentry following

deportation. Rosas contends that his sentence is invalid in

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

the sentencing judge applied the sentencing guidelines as if they

were mandatory. Because Rosas did not raise this issue in the

district court, we review it only for plain error. United States

v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005); see

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40872 -2-

also United States v. Malveaux, ___F.3d___, No. 03-41618, 2005 WL

1320362 (5th Cir. Apr. 11, 2005). To prevail under a plain error

analysis, Rosas must show, among other things, that the error

prejudiced him by adversely affecting his substantial rights.

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

Rosas fails to identify anything in the record to suggest

that his sentence would have been any less had the court applied

the sentencing guidelines as advisory rather than mandatory.

See id. at 733-34. He thus fails to establish prejudice to his

substantial rights. See id.

Rosas argues pursuant to Apprendi v. New Jersey, 530 U.S.

466 (2000), that Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998), should be overruled. He concedes that his

constitutional argument is foreclosed by Almendarez-Torres, and

he raises it solely to preserve it for Supreme Court review.

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). The Supreme Court’s recent decisions in Shepard

v. United States, 125 S. Ct. 1254, 1262-63 & n.5 (2005), Booker,

and Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004), also did

not overrule Almendarez-Torres. We 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).

AFFIRMED.