United States v. Dominguez-Reynosa , 196 F. App'x 291 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-40011
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO ALFONSO DOMINGUEZ-REYNOSA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-738-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Fernando Alfonso Dominguez-Reynosa (Dominguez) pleaded
guilty to an indictment charging him with being found illegally
in the United States following a previous deportation. Dominguez
contends that he was sentenced illegally pursuant to the
mandatory Sentencing Guidelines in violation of the rule in
United States v. Booker, 543 U.S. 220 (2005), a so-called Fanfan
error. The Government contends that Dominguez has waived the
right to bring this issue in his plea agreement. In United
*
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this opinion should not be published and is not precedent except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. 05-40011
-2-
States v. Reyes-Celestino, 443 F.3d 451, 453 (5th Cir. 2006), the
court held that a similar waiver did not bar a preserved Fanfan
claim because the defendant did not (1) “unambiguously agree[] to
a mandatory application of the Sentencing Guidelines” and (2) did
not “explicitly waive his right to challenge the
constitutionality of the Guidelines on appeal.”
Because Dominguez did not preserve Fanfan error in the
district court, our review is for plain error. See United States
v. Valenzuela-Quevado, 407 F.3d 728, 732 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005). Dominguez cannot show that the
district court’s error in sentencing him pursuant to mandatory
Guidelines affected his substantial rights. See United States v.
Robles-Vertiz, 442 F.3d 350, 354 (5th Cir. 2006).
Dominguez argues that he should not be required to show
plain error because an objection would have been futile in light
of United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004),
vacated, 543 U.S. 1101 (2005). He contends also that the
district court’s mandatory application of the Sentencing
Guidelines was plainly erroneous because the error was structural
or that prejudice should otherwise be presumed. He concedes that
these arguments are foreclosed and states that they are raised to
preserve them for further review. See United States v. Malveaux,
411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194
(2005); United States v. Mares, 402 F.3d 511, 520–21 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).
No. 05-40011
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Dominguez challenges the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). The Government contends that
Dominguez waived the right to assert this question in his plea
agreement. We assume, arguendo only, that the waiver does not
bar the instant appeal.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that treatment of prior
convictions as sentencing factors in § 1326(b)(1) and (2) was
constitutional. Although Dominguez contends that a majority of
the Supreme Court would now consider Almendarez-Torres to be
incorrectly decided in light of Apprendi, 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). Dominguez
concedes as much, but he raises the argument to preserve it for
further review. The judgment is AFFIRMED.