United States v. Rodriguez-Escobar ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 04-20715
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS RODRIGUEZ-ESCOBAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-92-1
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Jose Luis Rodriguez-Escobar pleaded guilty to a one-count
indictment charging him with being an alien found in the United
States after deportation following an aggravated felony
conviction. The district court sentenced Rodriguez-Escobar to 70
months in prison and a three-year term of supervised release.
Rodriguez-Escobar challenges the 16-level sentencing
enhancement he received under U.S.S.G. § 2L1.2(b)(1)(A)(ii),
arguing that the district court erred by finding that his prior
*
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this opinion should not be published and is not precedent except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. 04-20715
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Texas conviction for burglary of a habitation constitutes a
“crime of violence.” The district court correctly found that
Rodriguez-Escobar’s prior conviction for burglary of a habitation
was a conviction for a crime of violence. See United States v.
Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert.
denied, 126 S. Ct. 1398 (2006); United States v. Hornsby, 88 F.3d
336, 339 (5th Cir. 1996).
Rodriguez-Escobar argues for the first time on appeal that
his sentence was imposed illegally in light of United States v.
Booker, 543 U.S. 220 (2005). This court’s review is for plain
error. See United States v. Valenzuela-Quevedo, 407 F.3d 728,
732-33 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005); United
States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126
S. Ct. 43 (2005).
After Booker, “[i]t is clear that application of the
Guidelines in their mandatory form constitutes error that is
plain.” Valenzuela-Quevedo, 407 F.3d at 733. To satisfy the
plain error test in light of Booker, Rodriguez-Escobar must
demonstrate that his substantial rights were affected by the
error. See United States v. Infante, 404 F.3d 376, 395 (5th Cir.
2005). There is nothing in the record indicating that the
district court would have imposed a different sentence under an
advisory sentencing guidelines scheme. See United States v.
Bringier, 405 F.3d 310, 317 n.4 (5th Cir.), cert. denied, 126
S. Ct. 264 (2005). Rodriguez-Escobar argues that application of
No. 04-20715
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the plain error standard is contrary to the plain error standard
enunciated in United States v. Dominguez Benitez, 542 U.S. 74(2004). Rodriguez-Escobar’s challenge to the showing required
under Mares and Bringier is unavailing, as one panel may not
overrule the decision of a prior panel absent en banc
reconsideration or a superseding contrary decision of the Supreme
Court. See United States v. Eastland, 989 F.2d 760, 768 n.16
(5th Cir. 1993).
Rodriguez-Escobar’s constitutional challenge to 8 U.S.C.
§ 1326(b) is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Rodriguez-Escobar contends
that Almendarez-Torres was incorrectly decided and that a
majority of the Supreme Court would overrule Almendarez-Torres in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have
repeatedly rejected such arguments on the basis that Almendarez-
Torres remains binding. See United States v. Garza-Lopez, 410
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Rodriguez-Escobar properly concedes that his argument is
foreclosed in light of Almendarez-Torres and circuit precedent,
but he raises it here to preserve it for further review.
AFFIRMED.