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 2005-08

United States v. Cruz-Castan , 141 F. App'x 368 ( 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
No. 04-41718                          Clerk
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTORIANO CRUZ-CASTAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-527-ALL
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Victoriano Cruz-Castan (“Cruz”) appeals the sentence imposed
following his guilty-plea conviction for illegal reentry, in
violation of
    8 U.S.C. § 1326
    .**    He argues, for the first time on
appeal, that the district court erred in sentencing him under a
mandatory sentencing guidelines scheme, citing United States v.
Booker,
    125 S. Ct. 738
    , 756 (2005).    He acknowledges that the
argument is reviewed for plain error but contends that plain
*
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this opinion should not be published and is not precedent except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.
**
Cruz does not appeal the revocation of his supervised
release or the sentence imposed following revocation based on
this offense.
No. 04-41718
-2-
error should not apply because any objection would have been
futile pre-Booker; alternatively, he asserts 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
Cruz under a mandatory sentencing guidelines regime.   See 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. Martinez-Lugo,
    411 F.3d 597
    , 600 (5th Cir. 2005).
Cruz, however, fails to meet his burden of showing that the
district court’s error affected his substantial rights.    See
Valenzeuela-Quevedo,
    407 F.3d at 733-34
    ; United States v. Mares,
    402 F.3d 511
    , 521 (5th Cir. 2005), petition for cert. filed (Mar.
31, 2005) (No. 04-9517); see also United States v. Bringier,
    405 F.3d 310
    , 317 n.4 (5th Cir. 2005), petition for cert. filed (July
26, 2005) (No. 05-5535).   His argument that Mares and Bringier
were wrongly decided is unavailing.   See United States v. Ruff,
    984 F.2d 635
    , 640 (5th Cir. 1993).
As he concedes, Cruz’s argument that the sentencing
provisions in
    8 U.S.C. § 1326
    (a) and (b) are unconstitutional is
foreclosed by Almendarez-Torres v. United States,
    523 U.S. 224
    No. 04-41718
-3-
(1998).   See Apprendi v. New Jersey,
    530 U.S. 466
    , 489-90 (2000);
United States v. Dabeit,
    231 F.3d 979
    , 984 (5th Cir. 2000).
The district court’s judgment is AFFIRMED.