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 2005-08

United States v. Palencia-Contreras , 141 F. App'x 342 ( 2005 )


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  •                                                         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. 04-41366
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO PALENCIA-CONTRERAS,
also known as Joaquin Gonzalez-Hernandez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-322-ALL
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Arturo Palencia-Contreras (“Palencia”) appeals the 37-month
sentence he received following his guilty-plea conviction for
illegal reentry, in violation of 8 U.S.C. § 1326.   He first
argues that his prior conviction for simple possession of cocaine
under Texas law should not be considered an aggravated felony for
enhancement purposes under U.S.S.G. § 2L1.2.   The argument is
foreclosed.    See United States v. Caicedo-Cuero,
    312 F.3d 697
    ,
*
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this opinion should not be published and is not precedent except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. 04-41366
-2-
706-11 (5th Cir. 2002); United States v. Hinojosa-Lopez,
    130 F.3d 691
    , 694 (5th Cir. 1997).
Palencia next argues, for the first time on appeal, that his
sentence is unconstitutional because Almendarez-Torres v. United
States,
    523 U.S. 224
    , 235 (1998), has effectively been overruled
by Apprendi v. New Jersey,
    530 U.S. 466 
    (2000).   However,
Apprendi did not overrule Almendarez-Torres.   See
    Apprendi, 530 U.S. at 489-90
    ; see also United States v. Dabeit,
    231 F.3d 979
    ,
984 (5th Cir. 2000).   To the extent that Palencia argues that
Almendarez-Torres has been overruled by United States v. Booker,
    125 S. Ct. 738 
    (2005), he is incorrect; nothing in Booker
suggests that the rule of Alemendarez-Torres has been disturbed.
    Booker, 125 S. Ct. at 756
    .
Palencia additionally argues, also for the first time on
appeal, that the district court erred in sentencing him under a
mandatory sentencing guidelines scheme, citing Booker.     He
acknowledges that the argument is reviewed for plain error but
contends that he does not have to demonstrate any effect on his
substantial rights because the error is structural and because
prejudice should be presumed.
Plain error is the correct standard of review.   See United
States v. Malveaux,
    411 F.3d 558
    , 561 n.9 (5th Cir. 2005),
petition for cert. filed (July 11, 2005) (No. 05-5297).    The
district court committed error that is plain when it sentenced
Palencia under a mandatory sentencing guidelines regime.        See
No. 04-41366
-3-
United States v. Valenzuela-Quevedo,
    407 F.3d 728
    , 733 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556);
United States v. Mares,
    402 F.3d 511
    , 520-21 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Palencia, however, fails to meet his burden of showing that the
district court’s error affected his substantial rights because he
points to nothing in the record indicating that the district
court would have imposed a lesser sentence under an advisory
scheme.   See
    Valenzeuela-Quevedo, 407 F.3d at 733-34
    ;
    Mares, 402 F.3d at 521
    .
The district court’s judgment is AFFIRMED.