United States v. Sanchez-Vivar

140 F. App'x 588

Opinion

PER CURIAM:

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Santiago Sanchez-Vivar (Sanchez), appeals the 41-month sentence imposed after he pleaded guilty to one count of illegal reentry into the United States. See 8 U.S.C. § 1326.

Sanchez contends that 8 U.S.C. § 1326(b) is unconstitutional and that this court should vacate his sentence and remand his case for resentencing to no more than two years in prison under 8 U.S.C. § 1326(a). As he concedes, this contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Sanchez also contends that he is entitled to resentencing because the district court sentenced him under a mandatory application of the federal sentencing guidelines contrary to the rule of United States v. Booker, — U.S.-,---, -, 125 S.Ct. 738, 756-57, 769, 160 L.Ed.2d 621 (2005). We review for plain error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.2005), petition for cert. filed (July 25, 2005) (No. 05-5556). Although there was an error, Sanchez has failed to a demonstrate a sufficient probability “that the district judge would have imposed a different sentence” under advisory guidelines. Id. at 733; United States v. Mares, 402 F.3d 511, 502, 521-22 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). Sanchez thus fails to show that the error affected his substantial rights as he must do to meet the plain-error standard. See Mares, 402 F.3d at 521-22.

The judgment of the district court is AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.