United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-40159
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS VILLARREAL-MARTINEZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-85-ALL
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Jose Luis Villarreal-Martinez (“Villarreal”) appeals his
conviction and sentence, following a jury trial, for illegally
re-entering the United States after having been deported and
after having been convicted of an “aggravated felony,” in
violation of 8 U.S.C. § 1326(a) and (b). The district court
sentenced him to 77 months in prison and three years of
supervised release. For the first time on appeal, Villarreal
contends that, under United States v. Booker, 125 S. Ct. 738
(2005), the district court violated his Sixth Amendment rights by
*
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this opinion should not be published and is not precedent except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. 04-40159
-2-
imposing a 16-level Sentencing Guidelines increase based on his
aggravated-felony conviction, without submitting that factor for
proof to the jury.
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the
Supreme Court held that, “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’” (emphasis added). In Blakely
v. Washington, 124 S. Ct. 2531, 2537 (2004), the Supreme Court
held that “the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the
defendant.” In Booker, 125 S. Ct. at 756, the Supreme Court
extended the Blakely holding to the Guidelines, holding that
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence authorized by the facts established by a plea
of guilty or a jury verdict must be admitted by the defendant or
proved beyond a reasonable doubt.” (emphasis added). The Court
excised 18 U.S.C. § 3553(b)(1) of the Sentencing Reform Act,
rendering the guidelines effectively advisory rather than
mandatory. Id. at 764-65. Under Booker, district courts are
still required to consider the guidelines, and Booker applies to
this direct appeal. See id. at 757-69.
A challenge under Booker that is raised for the first time
on appeal, like Villarreal’s, is reviewable only for plain error.
United States v. Mares, 402 F.3d 511 (5th Cir. 2005), petition
for cert. filed, No. 04-9517 (Mar. 31, 2005). Villarreal has not
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established error, plain or otherwise, with respect to the
Sentencing Guidelines in his case, because “Booker explicitly
excepts from Sixth Amendment analysis” the fact of a prior
conviction. See United States v. Guevara, F.3d , No. 03-
11299 (5th Cir. May 2, 2005), 2005 WL 1009772 at *6.
The conviction and sentence are AFFIRMED.