United States v. Torres-Lucio

141 F. App'x 343

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. 04-40875 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN JOSE TORRES-LUCIO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-223-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Juan Jose Torres-Lucio appeals from his guilty-plea

conviction for illegal reentry following deportation. For the

first time on appeal, Torres-Lucio contends that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). As Torres-Lucio concedes, his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998). See

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40875 -2-

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

Torres-Lucio argues, also for the first time on appeal, that the

district court erred in sentencing him under a mandatory

sentencing guidelines scheme. He acknowledges that this argument

is reviewed for plain error. Nevertheless, Torres-Lucio contends

that he does not have to show that the district court’s error

affected his substantial rights because the error is structural

and because prejudice should be presumed.

Plain error is the correct standard of review. See United

States v. Malveaux, 411 F.3d 558, 560 (5th Cir. 2005), petition

for cert. filed (July 11, 2005) (No. 05-5297). The district

court committed error that is plain when it sentenced Torres-

Lucio under a mandatory sentencing guidelines regime. See United

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

petition for cert. filed (July 25, 2005) (No. 05-5556); United

States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005).

Torres-Lucio’s arguments that application of the mandatory

guidelines scheme is a “structural” error that is not susceptible

to plain-error analysis or, alternatively, that plain-error

prejudice should be presumed, lack merit. See Martinez-Lugo, 411

F.3d at 601. Torres-Lucio fails to meet his burden of showing

that the district court’s error affected his substantial rights.

See Valenzeuela-Quevedo, 407 F.3d at 733-34; see also United

States v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir. 2005),

petition for cert. filed (July 26, 2005) (No. 05-5535).

AFFIRMED.