United States v. Sosa-Saucedo

141 F. App'x 372

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 28, 2005

Charles R. Fulbruge III Clerk No. 04-41727 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOMINGO SOSA-SAUCEDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-607-ALL --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

Domingo Sosa-Saucedo (“Sosa”) appeals his guilty-plea

conviction of having been found in the United States after having

been deported, without having obtained the consent of the

Attorney General or the Secretary of Homeland Security to re-

enter the country and after having been convicted of an

“aggravated felony,” in violation of 8 U.S.C. § 1326(a) and (b).

The district court sentenced him to 37 months in prison and three

years of supervised release.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41727 -2-

For the first time on appeal, Sosa contends that he was

illegally sentenced pursuant to the formerly mandatory Sentencing

Guidelines regime, in violation of United States v. Booker, 125

S. Ct. 738 (2005). Sosa’s plea agreement contained a waiver-of-

appeal provision by which he waived, inter alia, “the right to

appeal the sentence imposed or the manner in which it was

determined,” except for a sentence above the statutory maximum or

an upward departure from the applicable Guidelines range. Sosa

contends that this waiver provision is not enforceable because,

at his rearraignment, the magistrate judge incorrectly told him

that he retained the right to appeal an “illegal sentence.” We

agree. Because the magistrate judge inaccurately described the

waiver provision, Sosa’s waiver cannot be deemed knowing and

voluntary with respect to an “illegal sentence.” See FED.

R. CRIM. P. 11(b)(1)(N); United States v. Robinson, 187 F.3d 516,

517-18 (5th Cir. 1999).

Sentencing a defendant pursuant to a mandatory guidelines

regime, standing alone, constitutes “Fanfan” error, and such an

error is “plain.” See Booker, 125 S. Ct. at 750, 768-69

(addressing preserved challenge in companion case); United States

v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005). “There

is no indication in the record from the sentencing judge’s

remarks or otherwise,” see Mares, 402 F.3d at 522, however, that

the court would have imposed a different sentence under an

advisory guidelines regime. Because Sosa has not shown that the No. 04-41727 -3-

error affected his “substantial rights,” see id. at 521, he has

not demonstrated plain error.

Sosa also argues 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. Sosa 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).

The sentence is AFFIRMED.