United States v. Mendoza-Torres ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 15, 2005
Charles R. Fulbruge III
Clerk
No. 04-40672
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CECILIO MENDOZA-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-20-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Cecilio Mendoza-Torres (“Mendoza”) appeals following his
guilty plea to a charge of being present illegally in the United
States after deportation, in violation of 8 U.S.C. § 1326.
Mendoza argues that the district court misapplied the Sentencing
Guidelines by erroneously characterizing his state felony
conviction for possession of a controlled substance as an
“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1).
Mendoza’s argument is foreclosed by circuit precedent. See
*
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this opinion should not be published and is not precedent except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. 04-40672
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United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.
2002); United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir.
2001); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th
Cir. 1997). Jerome v. United States, 318 U.S. 101 (1943), does
not affect the binding precedential value of these opinions.
Mendoza also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional. He acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998), but he seeks to preserve his argument for further
review in light of Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; United States v. Mancia-Perez, 331
F.3d 464, 470 (5th Cir.), cert. denied, 124 S. Ct. 358 (2003).
Mendoza further asserts that, if Almendarez-Torres is overruled
and if Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to
the federal sentencing guidelines, his sentence could not be
enhanced based on his prior convictions, unless they were
submitted to a jury or admitted by him. As noted, Almendarez-
Torres has not been overruled. This court must follow
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Mancia-Perez, 331 F.3d at 470(internal quotation and citation omitted).
Finally, Mendoza argues that the district court committed
reversible error by imposing a sentence pursuant to the mandatory
No. 04-40672
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Federal Sentencing Guidelines system that was held
unconstitutional in United States v. Booker, 125 S. Ct. 738(2005). Because Mendoza did not raise this objection in the
district court, our review is for plain error. See United States
v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005).
The district court committed error that is plain by
sentencing Mendoza under a mandatory Sentencing Guidelines
scheme. See id.; United States v. Mares, 402 F.3d 511, 520-21
(5th Cir. 2005), petition for cert. filed (U.S. Mar. 31, 2005)
(No. 04-9517). However, Mendoza 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.
Accordingly, the district court’s judgment is AFFIRMED.