United States v. Arquimedes-Portillo , 132 F. App'x 36 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 20, 2005
______________________
Charles R. Fulbruge III
No. 03-41601 Clerk
______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS ARQUIMEDES-PORTILLO, also known as Luis Portillo,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(03-CR-249)
Before SMITH, DENNIS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
Luis Arquimedes-Portillo (“Portillo”) was indicted for and
pleaded guilty to being unlawfully present in the United States
following deportation under 8 U.S.C. § 1326. At sentencing, the
district court applied a 16-level “crime of violence” enhancement
for Portillo’s 1992 New York conviction for first degree rape and
sentenced him to the bottom of the applicable Guidelines range:
46 months of imprisonment and 2 years of supervised release.
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
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On appeal, Portillo challenges his conviction by arguing
that the “felony” and “aggravated felony” provisions contained in
8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Portillo concedes that this
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998). However, he argues that Almendarez-Torres has
been cast into doubt by Apprendi and raises this issue to
preserve it for Supreme Court review.
Sections 1326(b)(1) and (b)(2) set forth enhanced criminal
penalties for aliens who were previously removed after committing
a felony or an aggravated felony. In Almendarez-Torres, the
Supreme Court held that § 1326(b)(2)’s enhancement provision is a
sentencing factor and not a separate criminal offense that must
be alleged in the indictment. 523 U.S. at 235. Apprendi did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Because we must follow Almendarez-Torres “unless and until the
Supreme Court itself determines to overrule it,” Hopwood v.
Texas, 84 F.3d 720, 722 (5th Cir. 1996), we affirm Portillo’s
conviction.
Portillo also argues that the district court’s mandatory
application of the Sentencing Guidelines is reversible error
under United States v. Booker, --- U.S. ----, 125 S. Ct. 738
(2005). Because Portillo did not raise this objection to his
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sentence in the district court, it is subject to plain error
review. United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.
2005).
An appellant may demonstrate plain error if he shows “(1)
error, (2) that is plain, and (3) that affects substantial
rights.” Id. (citing United States v. Cotton, 535 U.S. 625, 631
(2002)). If all three conditions are met, then we may exercise
our discretion to notice the error only if it also “seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
“It is clear after Booker that application of the Guidelines
in their mandatory form constitutes error that is plain.” United
States v. Valenzuela-Quevedo, --- F.3d ----, No. 03-41754, 2005
WL 941353, at *4 (5th Cir. Apr. 25, 2005). Therefore, the first
two requirements of the plain error test are met. The third
prong of the test, however, is not satisfied in this case. To
demonstrate that his substantial rights have been affected,
Portillo must show that the district court’s error affected the
outcome of the proceedings. United States v. Olano, 507 U.S.
725, 734-35 (1993). To meet that burden, Portillo must show
“with a probability sufficient to undermine confidence in the
outcome, that if the judge had sentenced him under an advisory
sentencing regime rather than a mandatory one, he would have
received a lesser sentence.” United States v. Infante, 404 F.3d
3
376, 395 (5th Cir. 2005).
Portillo contends that the district court’s imposition of
the minimum available sentence, especially in light of the
vileness of his prior crime, demonstrates a probability that the
court would have imposed a lower sentence had it not been
constrained by the mandatory provisions in the Guidelines.
However, the transcript of the sentencing hearing reveals why the
judge sentenced Portillo to only 46 months: “The reasons that I
have chosen this sentence within the guidelines is because there
was a recommendation of a sentence at the low end of the
guidelines in this case. It’s part of the plea bargain
agreement.” Neither these remarks, nor anything else in the
record, indicate that the judge would have imposed a more lenient
sentence under an advisory regime. Portillo’s substantial
rights, therefore, have not been affected, and he has failed to
show plain error.
For the foregoing reasons, we AFFIRM Portillo’s conviction
and sentence.
AFFIRMED.
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