United States v. Hinojosa-Soto , 153 F. App'x 309 ( 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                November 9, 2005
    Charles R. Fulbruge III
    Clerk
    No. 04-41659
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MANUEL HINOJOSA-SOTO,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:04-CR-537
    --------------------
    Before DAVIS, SMITH, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Manuel Hinojosa-Soto (“Hinojosa”) appeals his sentence under
    8 U.S.C. § 1326(a) and (b) for illegal reentry into the United
    States after having been deported following a conviction for an
    aggravated felony.   He asserts two bases for the appeal.
    Hinojosa argues for the first time on appeal that the
    district court’s belief during sentencing that the United States
    Sentencing Guidelines were mandatory, rather than advisory,
    requires reversal by this court under United States v. Booker,
    *
    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    this opinion should not be published and is not precedent except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. 04-41659
    -2-
    
    125 S. Ct. 738
    (2005).    Review is for plain error.   See United
    States v. Martinez-Lugo, 
    411 F.3d 597
    , 600 (5th Cir. 2005), cert.
    denied, ___ S. Ct. ___ (Oct. 11, 2005) (No. 05-6242).      Hinojosa’s
    sentence, imposed pursuant to mandatory guidelines, constitutes
    error.   See 
    id. Hinojosa asserts
    that the error is structural,
    or at least presumptively prejudicial, such that he is not
    required to show prejudice.     As he acknowledges, this argument is
    foreclosed.   See 
    id. at 601.
       He admits that he cannot show that
    his sentence likely would have been different under an advisory
    application of the Guidelines.     See United States v. Mares, 
    402 F.3d 511
    , 521-22 (5th Cir.), cert. denied, 
    126 S. Ct. 43
    (2005).
    Hinojosa also asserts for the first time on appeal that the
    “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
    are unconstitutional.    The Supreme Court’s decision in
    Almendarez-Torres v. United States, 
    523 U.S. 224
    , 235 (1998),
    controls this issue.     We must follow Almendarez-Torres “unless
    and until the Supreme Court itself determines to overrule it.”
    United States v. Dabeit, 
    231 F.3d 979
    , 984 (5th Cir. 2000).
    Thus, this issue is also foreclosed.
    The district court’s judgment is AFFIRMED.
    

Document Info

Docket Number: 04-41659

Citation Numbers: 153 F. App'x 309

Judges: Davis, Smith, Dennis

Filed Date: 11/9/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024