United States v. Alvarado-Jimenez , 145 F. App'x 79 ( 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. 05-50126
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SOTERO ALVARADO-JIMENEZ, also known as
Alvarado Sotero-Jimenez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1528-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Sotero Alvarado-Jimenez (“Alvarado”) appeals the sentence
imposed following his conviction for illegally reentering the
United States following a prior deportation, in violation of
8 U.S.C. § 1326. Finding no error, we affirm.
Alvarado first argues that, in light of United States v.
Booker, 125 S. Ct. 738 (2005), the district court erred in
imposing a sentence utilizing the Sentencing Guidelines as
mandatory. We review for plain error. See 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this opinion should not be published and is not precedent except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.
No. 05-50126
-2-
Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
filed (No. 04-9517) (U.S. Mar. 31, 2005). Application of the
Guidelines as mandatory, even absent a Sixth Amendment violation
as is the case here, is plain or obvious error after Booker. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
However, Alvarado cannot show that the error affected his
substantial rights because the record does not indicate that the
district court would have imposed a lower sentence under an
advisory, rather than a mandatory, Guidelines scheme. See id.;
Mares, 402 F.3d at 522.
Alvarado’s second argument, that 8 U.S.C. §§ 1326(b)(1) and
(b)(2) are unconstitutional, is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235, 239-47 (1998). See United
States v. Martinez-Mata, 393 F.3d 625, 629 n.3 (5th Cir. 2004),
cert. denied, 125 S. Ct. 1877 (2005). Alvarado concedes this
point, but raises it to preserve the matter for further review.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.