United States v. Villafranca-Castro

145 F. App'x 53

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. 04-40911 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORIO VILLAFRANCA-CASTRO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-108-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Gregorio Villafranca-Castro appeals his guilty-plea

conviction and sentence for being found in the United States,

without permission, following his conviction of an aggravated

felony and subsequent removal. See 8 U.S.C. § 1326(a), (b).

For the first time on appeal, Villafranca-Castro argues that

the sentencing provisions in 8 U.S.C. § 1326(b) are

unconstitutional. Villafranca-Castro acknowledges that his

argument is foreclosed by Almendarez-Torres v. United States, 523

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40911 -2-

U.S. 224, 235 (1998), but seeks to preserve the issue for review

in light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

However, Apprendi did not overrule Almendarez-Torres. See

Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000). This court must follow

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Dabeit, 231 F.3d at 984 (internal

quotation marks and citation omitted).

Also for the first time on appeal, Villafranca-Castro,

relying on the possibility that Almendarez-Torres will be

overruled, as well as on Blakely v. Washington, 542 U.S. 296

(2004), argues that the Federal Sentencing Guidelines are

unconstitutional because they permit the enhancement of a

sentence based on a defendant’s prior convictions. The argument

fails because Almendarez-Torres has not been overruled, and the

enhancement of a sentence based on prior convictions does not

violate the Sixth Amendment. United States v. Booker, 125 S. Ct.

738, 756 (2005).

Finally, Villafranca-Castro argues that the district court

erred by sentencing him under the mandatory Sentencing Guidelines

scheme held unconstitutional in Booker. See id. We review for

plain error. See United States v. Martinez-Lugo, 411 F.3d 597,

600 (5th Cir. 2005). Villafranca-Castro has satisfied the first

two prongs of the plain error analysis by showing that the

district court committed error that was plain. See id. The No. 04-40911 -3-

error is not a structural one, however, and Villafranca-Castro

has not satisfied the third prong of the plain error analysis by

showing that the error affected his substantial rights. See id.

at 600-01.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.