United States v. Gonzalez-Acosta , 145 F. App'x 495 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 7, 2005
Charles R. Fulbruge III
Clerk
No. 05-40052
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JORGE GONZALEZ-ACOSTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-558-ALL
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Jose Jorge Gonzalez-Acosta appeals his guilty-plea conviction
and sentence for illegal reentry after deportation in violation of
8 U.S.C. § 1326 (a) and (b). Gonzalez-Acosta argues that, in light
of United States v. Booker, 125 S. Ct. 738 (2005), the district
court plainly erred in sentencing him under a mandatory guidelines
system.
We review for plain error. See United States v. Valenzuela-
Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition for cert.
filed, (July 25, 2005) (No. 05-5556); see also United States v.
*
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opinion should not be published and is not precedent except under the limited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.
Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005), petition for cert.
filed (July 11, 2005) (No. 05-5297). After Booker, it is clear
that application of the federal sentencing guidelines in their
mandatory form constitutes error that is plain. Valenzuela-
Quevedo, 407 F.3d at 733-34. However, nothing in the record
indicates that the plain error affected Gonzalez-Acosta’s
substantial rights. See id.
Gonzalez-Acosta argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Gonzalez-Acosta acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but he wishes to preserve the issue for Supreme Court
review in light of Apprendi. 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). Thus, we must follow
Almendarez-Torres unless the Supreme Court overrules it. Dabeit,
231 F.3d at 984.
AFFIRMED.
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