United States v. Martinez ( 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. 04-41073
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    LINO ROMAN MARTINEZ, also known as Jose Vidas,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 1:04-CR-257-ALL
    --------------------
    Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
    PER CURIAM:*
    Lino Roman Martinez (Martinez) appeals from his guilty-plea
    conviction for being an alien unlawfully found in the United
    States after deportation and after an aggravated felony
    conviction, in violation of 8 U.S.C. § 1326.   Martinez argues
    that the sentencing provisions of 8 U.S.C. § 1326(b) are
    unconstitutional and that the district court erred under United
    States v. Booker, 
    125 S. Ct. 738
    (2005), when it sentenced him
    under mandatory Guidelines.
    *
    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    this opinion should not be published and is not precedent except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. 04-41073
    -2-
    As Martinez concedes, his argument that the sentencing
    provisions in 8 U.S.C. § 1326(b) are unconstitutional because
    they do not require the fact of a prior conviction to be treated
    as an offense element and proved beyond a reasonable doubt was
    rejected in Almendarez-Torres v. United States, 
    523 U.S. 224
    ,
    234-35, 239-47 (1998).   This court must follow the precedent
    set in Almendarez-Torres unless the Supreme Court overrules it.
    See United States v. Rivera, 
    265 F.3d 310
    , 312 (5th Cir. 2001).
    Accordingly, Martinez’s argument is foreclosed.
    As Martinez argues, the district court erred by imposing a
    sentence pursuant to a mandatory application of the Guidelines.
    
    Booker, 125 S. Ct. at 767-68
    ; United States v. Martinez-Lugo,
    
    411 F.3d 597
    , 600-01 (5th Cir. 2005).     However, in 
    Martinez-Lugo, 411 F.3d at 601
    , this court rejected the argument urged by
    Martinez, that the error is structural and presumptively
    prejudicial.   Instead, Martinez-Lugo held that this error is
    subject to the plain error analysis set forth in United States v.
    Mares, 
    402 F.3d 511
    (5th Cir. 2005), petition for cert. filed
    (Mar. 31, 2005) (No. 04-9517).    
    Martinez-Lugo, 411 F.3d at 601
    .
    Thus, because Martinez raises this issue for the first time on
    appeal, his argument is reviewable only for plain error.
    Because Martinez was sentenced under a mandatory Guidelines
    regime, he has met the first two prongs of the plain error test
    because Fanfan error is “error” that is “plain.”     See
    
    Martinez-Lugo, 411 F.3d at 600
    .   Martinez has failed to point to
    No. 04-41073
    -3-
    statements by the sentencing judge that demonstrate a likelihood
    that the judge, sentencing under an advisory rather than a
    mandatory scheme, would have reached a significantly different
    result.   See United States v. De Jesus-Batres, 
    410 F.3d 154
    , 165
    (5th Cir. 2005).   Martinez’s arguments are speculative and are
    based on arguments that he did not present to the district court.
    He has failed to establish “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 376
    , 395 (5th Cir. 2005) (citation
    omitted).   He has therefore failed to show that the error
    affected his substantial rights and has thus failed to establish
    plain error.   See 
    Martinez-Lugo, 411 F.3d at 600
    -01.
    Accordingly, the district court’s judgment is AFFIRMED.
    

Document Info

Docket Number: 04-41073

Judges: Benavides, Clement, Per Curiam, Prado

Filed Date: 8/18/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024