United States v. Garcia-Nava , 168 F. App'x 617 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40150
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL GARCIA-NAVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-749-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Pursuant to a written agreement, Ismael Garcia-Nava pleaded
guilty to two counts of a three-count indictment, admitting that
he (1) transported an undocumented alien within the United States
by means of a motor vehicle for private financial gain in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II),
(a)(1)(B)(i); and (2) was unlawfully present in the United States
after deportation in violation of 8 U.S.C. § 1326(a), (b). He
appeals his conviction and sentence of 37 months of imprisonment.
*
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this opinion should not be published and is not precedent except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. 05-40150
-2-
Garcia-Nava argues for the first time on appeal that the
district court erred in imposing a sentence under a mandatory
guidelines regime, in violation of United States v. Booker, 125
S. Ct. 738, 756-57 (2005). He also argues that the “felony” and
“aggravated felony” provisions of § 1326(b) are unconstitutional.
We need not decide the applicability of the waiver in this case
because the issues that Garcia-Nava raises lack arguable merit or
are foreclosed.
We review Garcia-Nava’s Booker-based challenge for plain
error. See United States v. Martinez-Lugo, 411 F.3d 597, 600
(5th Cir.), cert. denied, 126 S. Ct. 464 (2005); United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005). Garcia-Nava concedes he cannot
establish a reasonable probability that the district court likely
would have sentenced him differently under an advisory guidelines
regime. Therefore, he cannot establish plain error. See
Valenzuela-Quevedo, 407 F.3d at 733; United States v. Mares, 402
F.3d 511, 520-21 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
He argues, for the purpose of preserving further review,
that the error is structural, or at least presumptively
prejudicial, such that he is not required to establish that his
substantial rights were affected under the third prong of the
plain-error test. As he correctly concedes, this court has
rejected these arguments. United States v. Malveaux, 411 F.3d
558, 561 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194 (2005).
No. 05-40150
-3-
Garcia-Nava’s constitutional challenge to § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Garcia-Nava 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). Garcia-Nava 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.
Accordingly, the conviction and sentence are AFFIRMED.