United States v. Verastegui-Garcia

140 F. App'x 583

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 18, 2005
• Docket: 04-40813
• Status: Unpublished

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 18, 2005

Charles R. Fulbruge III Clerk No. 04-40813 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUBEN VERASTEGUI-GARCIA, also known as Ruben Garcia,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-219-ALL --------------------

Before HIGGINBOTHAM, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

Having pleaded guilty pursuant to a plea agreement, Ruben

Verastegui-Garcia (“Verastegui”) appeals his sentence for being

illegally present in the United States after having been

deported, in violation of 8 U.S.C. § 1326(a) and (b). Verastegui

argues that the Government breached the plea agreement by failing

to move at sentencing for a two-level downward departure from the

federal Sentencing Guidelines pursuant to U.S.S.G. § 5K3.1; that

his sentence must be vacated in light of United States v. Booker,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40813 -2-

125 S. Ct. 738 (2005) because the district court was under the

impression that the Sentencing Guidelines were mandatory rather

than advisory; and that 8 U.S.C. § 1326(b) is unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Verastegui

concedes that his third argument is foreclosed by this court’s

precedent, but he raises the issue to preserve it for Supreme

Court review.

Because Verastegui did not object at sentencing to the

Government’s alleged breach of the plea agreement, we review his

argument for plain error and find none. United States v. Reeves,

255 F.3d 208, 210 (5th Cir. 2001). The district court was aware

that the Government had recommended a departure pursuant to

U.S.S.G. § 5K3.1, and the court made it clear that it had no

intention of granting such a departure under any circumstances.

Reeves, 255 F.3d at 210-11 & n.3; United States v. Calverley, 37

F.3d 160, 164 (5th Cir. 1994) (en banc).

We review Verastegui’s challenge to his sentence under

mandatory Sentencing Guidelines for plain error because he did

not raise the issue in the district court. United States v.

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

with Verastegui that the district court erred when it sentenced

him pursuant to a mandatory guidelines system. See Booker, 125

S. Ct. at 750, 768-69. Nevertheless, as the record does not

suggest in any way that the district court would have imposed a

different sentence had it been aware that the sentencing No. 04-40813 -3-

guidelines are merely advisory, Verastegui has not met his burden

of establishing plain error. Valenzuela-Quevedo, 407 F.3d 728,

733 (5th Cir. 2005).

We reject Verastegui’s challenge to the constitutionality of

8 U.S.C. § 1326. See Almendarez-Torres v. United States, 523

U.S. 224 (1998); Apprendi, 530 U.S. at 489-90. This court must

follow the precedent set in Almendarez-Torres unless and until

the decision is overruled by the Supreme Court. Randell v.

Johnson, 227 F.3d 300, 301 (5th Cir. 2000)

AFFIRMED.