United States v. Rodriguez-Puente

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. 04-40671
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE AMERICO RODRIGUEZ-PUENTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-96-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Americo Rodriguez-Puente (Rodriguez) challenges his
conviction and the sentence he received after he pleaded guilty
to illegal reentry. Rodriguez correctly concedes that his
argument that the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and that he was
subject to only a two-year maximum sentence is foreclosed. See
Shepard v. United States, 125 S. Ct. 1254 (2005); Dretke 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this opinion should not be published and is not precedent except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. 04-40671
-2-
Haley, 124 S. Ct. 1847 (2004); United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000).
Rodriguez’s argument that the district court’s error in
sentencing him under a mandatory Guidelines scheme is structural
and presumed to be prejudicial is also foreclosed. See United
States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005).
Rodriguez fails to show that his sentence is plain error inasmuch
as he points to nothing indicating that the district court would
have imposed a lighter sentence under an advisory Guidelines
scheme. See United States v. Inman, 411 F.3d 591, 596 (5th Cir.
2005).
AFFIRMED.