United States v. Trevino-Saenz

141 F. App'x 360

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. 04-40799 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE TREVINO-SAENZ, also known as Victor Manuel Martinez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-186-1 --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Trevino-Saenz appeals his sentence following his

guilty-plea conviction of one charge of illegal reentry into the

United States. Trevino-Saenz argues that the district court

erred in sentencing him under a mandatory sentencing guidelines

scheme. He acknowledges that this claim is reviewed for plain

error only.

The district court committed error that is plain by

sentencing Trevino-Saenz under a mandatory sentencing guidelines

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40799 -2-

regime. See United States v. Mares, 402 F.3d 511, 520-21

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)

(No. 04-9517); United States v. Valenzuela-Quevedo, 407 F.3d 728,

732 (5th Cir. 2005), petition for cert. filed (July 25, 2005)

(No. 05-5556). Nevertheless, Trevino-Saenz has not carried his

burden of showing that the district court’s error affected his

substantial rights. See Valenzuela-Quevedo, 407 F.3d at 733-34;

Mares, 402 F.3d at 521. Trevino-Saenz’s contention that this

error is structural and gives rise to a presumption of prejudice

is unavailing. See United States v. Malveaux, 411 F.3d 558, 560

n.9 (5th Cir. 2005), petition for cert. filed (July 11, 2005)

(No. 05-5297); see also United States v. Martinez-Lugo, 411 F.3d

597, 600-01 (5th Cir. 2005). Trevino-Saenz has not shown that he

should receive relief on this claim.

Trevino-Saenz’s argument that the sentencing provisions in 8

U.S.C. § 1326(b) are unconstitutional is, as he concedes,

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

247 (1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-490

(2000).

Trevino-Saenz has shown no reversible error in the district

court’s judgment. Consequently, that judgment is AFFIRMED.