United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 19, 2005
Charles R. Fulbruge III
Clerk
No. 04-40784
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO GARCIA-CARDENAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-22-ALL
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Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Ramiro Garcia-Cardenas (Garcia) appeals his guilty-plea
conviction and sentence for being found in the United States
following deportation and removal, without having obtained the
consent of the Attorney General or the Secretary of the
Department of Homeland Security. Garcia argues that 8 U.S.C.
§§ 1326(b)(1) & (b)(2) are unconstitutional and that Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), should be
overruled. He also contends, in light of 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this opinion should not be published and is not precedent except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. 04-40784
-2-
Booker, 125 S. Ct. 738 (2005), that the district court plainly
erred in sentencing him because the court believed that the
Federal Sentencing Guidelines were mandatory, rather than
advisory.
Because Garcia raises these issues for the first time on
appeal, we review only for plain error. See United States v.
Mares, __ F.3d __, No. 03-21035, 2005 WL 503715 at *7 (5th Cir.
Mar. 4, 2005), petition for cert. filed, No. 04-9517 (U.S. Mar.
31, 2005). Although the decision in Almendarez-Torres has been
called into question, see Shepard v. United States, 125 S. Ct.
1254, 1264 (2005) (Thomas, J., concurring), the Supreme Court has
not overruled it. Accordingly, Garcia’s first argument is
foreclosed. See United States v. Rivera, 265 F.3d 310, 312 (5th
Cir. 2001).
Garcia’s assertion that prejudice should be presumed from
the sentencing court’s Booker error is without merit. See Mares,
2005 WL 503715 at *8-*9. Garcia is not challenging the
calculation of his criminal history score or the characterization
of his prior conviction as an aggravated felony. Although Garcia
argues that there is a reasonable probability that he would have
received a lower sentence under an advisory guidelines scheme, he
concedes that “[i]t is impossible to know for certain what the
judge might have done if freed of the constraints of the
mandatory Guidelines.” Under Mares, this is insufficient to
establish that the error affected his substantial rights. Mares,
No. 04-40784
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2005 WL 503715 at *9. Accordingly, Garcia has not established
plain error with respect to his sentence.
AFFIRMED.