United States v. Castro-Santoyo , 141 F. App'x 366 ( 2005 )

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. 04-40804
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO CASTRO-SANTOYO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-23-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Roberto Castro-Santoyo appeals the sentence imposed
following his guilty-plea conviction for being present unlawfully
in the United States following deportation. For the first time
on appeal, Castro argues that the sentence enhancing provisions
contained in 8 U.S.C. §§ 1326(b)(1) and (b)(2) are
unconstitutional and that if that if Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), is overruled, the district
court’s application of a 16-level enhancement would be
unconstitutional under Blakely v. Washington, 542 U.S. 296, 124
*
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this opinion should not be published and is not precedent except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. 04-40804
-2-
S. Ct. 2531 (2004). As Castro concedes, these arguments are
foreclosed by the Supreme Court’s decision in Almendarez-Torres,
523 U.S. at 235. Apprendi v. New Jersey, 530 U.S. 466 (2000),
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). The Supreme Court’s decisions in Blakely and United
States v. Booker, 125 S. Ct. 738 (2005), did not overrule
Almendarez-Torres. See Booker, 125 S. Ct. at 756; Blakely, 124
S. Ct. at 2536-43. This court must follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (quotation
marks omitted).
For the first time in his supplemental letter brief, Castro
argues that the district court committed plain error under Booker
by sentencing him pursuant to a mandatory application of the
sentencing guidelines. He asserts that the error was plain
because it was structural or because prejudice should otherwise
be presumed. He maintains that the district court may have given
him a lesser sentence if it had known that the guidelines were
advisory because it sentenced him at the bottom of the guidelines
range and because his family would suffer hardship if he were
incarcerated for a substantial amount of time, a factor that the
guidelines discourage courts from considering.
We review for plain error. See United States v. Valenzuela-
Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition for cert.
No. 04-40804
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filed (July 25, 2005) (No. 05-5556). The district court’s error
was not structural and prejudice is not presumed. See United
States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005);
United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.
2005), petition for cert. filed (July 11, 2005) (No. 05-5297).
Although the district court may have been sympathetic to him,
Castro has not shown that he was prejudiced or that the district
court committed plain error. See United States v. Creech, 408
F.3d 264, 272 (5th Cir. 2005) (mere sympathy to defendant is
insufficient); United States v. Bringier, 405 F.3d 310, 317 & n.4
(5th Cir. 2005) (sentence at bottom of guidelines range is
insufficient), petition for cert. filed (July 26, 2005)
(No. 05-5535); see also Martinez-Lugo, 411 F.3d at 600 (plain
error analysis is the same for Sixth Amendment Booker error and
Fanfan error).
AFFIRMED.