United States v. Takajasi-Maldonado

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-50909
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ARIEL TAKAJASI-MALDONADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(2:04-CR-334-1-AML)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Ariel Takajasi-Maldonado appeals his
sentence for reentry into the United States following deportation,
in violation of 8 U.S.C. 1326(a) and (b)(2). He argues for the
first time on appeal that, in light of United States v. Booker, 125
S. Ct. 738 (2005), his sentence should be vacated and his case
remanded for resentencing because the district court plainly erred
by enhancing his sentence based on facts not determined by a jury
and which he did not admit. He also argues for the first time on
*
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this opinion should not be published and is not precedent except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.
appeal that his sentence should be vacated because the district
court plainly erred by treating the guidelines as mandatory.
Finally, Takajasi-Maldonado claims that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional.
Takajasi-Maldonado’s claim that the district court plainly
erred by enhancing his sentence based on facts not determined by a
jury and which he did not admit is unavailing because he failed to
show that “the sentencing judge--sentencing under an advisory
scheme rather then a mandatory one--would have reached a
significantly different result.” See United States v. Mares, 402
F.3d 511, 520-522 (5th Cir.), petition for cert. filed, No. 04-9517
(U.S. Mar. 31, 2005). His argument that the district court’s
application of the guidelines as mandatory was plain error also
fails because he did not show that the district court would have
imposed a different sentence had the guidelines been advisory only.
See United States v. Valenzuela-Quevedo, F.3d (5th Cir. Apr.
25, 2005)(No. 03-41754), 2005 WL 941353 at *4.
Takajasi-Maldonado’s argument that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Accordingly, the judgment of the
district court is
AFFIRMED.
2