United States v. Camarillo-De La Cruz

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 7, 2006
Charles R. Fulbruge III
Clerk
No. 05-40340
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BAUDEL CAMARILLO-DE LA CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-779-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Baudel Camarillo-De La Cruz appeals his guilty-plea
conviction and sentence for being found unlawfully in the United
States after deportation subsequent to an aggravated felony
conviction. He argues that the district court’s imposition of a
sentence enhanced by his prior drug conviction under U.S.S.G.
§ 2L1.2(b)(1)(B) was reversible plain error because the sentence
imposed for his prior conviction was not a sentence of
imprisonment. Because Camarillo-De La Cruz did not raise this
*
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this opinion should not be published and is not precedent except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. 05-40340
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argument in the district court, review is limited to plain error.
See United States v. Green, 324 F.3d 375, 381 (5th Cir. 2003).
Camarillo-De La Cruz has not shown that the enhancement of his
sentence pursuant to § 2L1.2 was plain or obvious error. We
rejected this argument in United States v. Garcia-Rodriguez, 415
F.3d 452, 454-56 (5th Cir), cert. denied, 126 S. Ct. 641 (2005),
and noted that two other circuits had rejected this argument.
See id. at 456 (citing United States v. Mullings, 330 F.3d 123,
124-25 (2d Cir. 2003); United States v. Hernandez-Valdovinos,
352 F.3d 1243, 1249 (9th Cir. 2003)). Therefore, Camarillo-De La
Cruz has not shown that the enhancement of his sentence under
§ 2L1.2 based on his prior conviction was reversible plain error.
Camarillo-De La Cruz also argues that the district court did
not consider and tailor his sentence to the factors in 18 U.S.C.
§ 3553(a) as required by United States v. Booker, 543 U.S. 220(2005). Because he did not raise this issue in the district
court, review is limited to plain error. See Green, 324 F.3d at
381. Pursuant to United States v. Alonzo, 435 F.3d 551, 553
(5th Cir. 2006), his sentence, which was within the applicable
guideline range, was presumptively reasonable. There was no
Sixth Amendment violation because the only enhancement of his
sentence was based on his prior conviction. See United States v.
Guevara, 408 F.3d 252, 261 (5th Cir. 2005), cert. denied,
126 S. Ct. 1080 (2006). A review of the sentencing transcript
indicates that the district court considered the nature of the
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offense, Camarillo-De La Cruz’s background, the circumstances
surrounding Camarillo-De La Cruz’s reentry into the United
States, his request for a downward departure, and the need to
protect the public and incapacitate Camarillo-De La Cruz as
required by § 3553(a). Camarillo-De La Cruz has not shown that
the district court failed to consider the factors in § 3553(a) or
that the sentence was unreasonable. See Alonzo, 435 F.3d at 553.
Camarillo-De La Cruz argues that the district court abused
its discretion in imposing a supervised release condition
requiring him to submit a DNA sample. Camarillo-De La Cruz’s
claim is not ripe for review. See United States v. Riascos-
Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005). Because this
claim is not ripe for review, we will not consider Camarillo-
De La Cruz’s claim that the retroactive application of the 2004
amendment to 18 U.S.C. § 3583(d) violates the Ex Post Facto
Clause.
Camarillo-De La Cruz argues that 8 U.S.C. § 1326 is facially
unconstitutional because it treats prior felony and aggravated
felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Camarillo-De La Cruz’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although he contends
that Almendarez-Torres was incorrectly decided and that a
majority of the Supreme Court would overrule Almendarez-Torres in
No. 05-40340
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light of Apprendi, we have repeatedly rejected such arguments on
the basis that Almendarez-Torres remains binding. See United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Camarillo-De La Cruz properly
concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
AFFIRMED.