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United States v. Castillo-Ramirez , 141 F. App'x 379 ( 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. 05-40013
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS CASTILLO-RAMIREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-567-ALL
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Luis Castillo-Ramirez appeals the sentence imposed following
his guilty-plea conviction for being unlawfully present in the
United States after deportation following a conviction for an
aggravated felony.   For the first time on appeal, Castillo argues
that the district court committed reversible error under United
States v. Booker,
    125 S. Ct. 738 
    (2005), by sentencing him
pursuant to a mandatory application of the sentencing guidelines.
He asserts that this issue should be reviewed de novo because
raising an objection in the district court would have been futile
*
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this opinion should not be published and is not precedent except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. 05-40013
-2-
and because the remedial opinion in Booker was unforeseeable.        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).    As Castillo acknowledges, this
argument is foreclosed.
Castillo contends that the district court plainly erred by
sentencing him pursuant to a mandatory application of the
guidelines because the error was structural or because prejudice
should otherwise be presumed.    He concedes that he cannot show
plain error under the standard set forth in United States v.
Mares,
    402 F.3d 511
    , 520-21 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517), but asserts that Mares was
wrongly decided.   The error was not structural and prejudice is
not otherwise 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)(citing
    Mares, 402 F.3d at 520-22
    ), petition for cert. filed (July 11, 2005) (No. 05-5297).
As Castillo acknowledges, this argument is foreclosed.
Also for the first time on appeal, Castillo argues that the
sentence enhancing provisions contained in 8 U.S.C. §§ 1326(b)(1)
and (b)(2) are unconstitutional.    This argument is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
States,
    523 U.S. 224
    , 235 (1998).    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
No. 05-40013
-3-
979, 984 (5th Cir. 2000).   The Supreme Court’s decisions in
Blakely v. Washington,
    124 S. Ct. 2531 
    (2004), and Booker 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 
    (internal quotation marks and citation omitted).   As Castillo
concedes, this argument is foreclosed.
AFFIRMED.