United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-40547
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MONREAL-MONREAL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1713-ALL
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Monreal-Monreal appeals the sentence imposed following
his guilty-plea conviction for being unlawfully present in the
United States following deportation. For the first time on
appeal, Monreal argues that the sentence enhancing provisions
contained in 8 U.S.C. §§ 1326(b)(1) and 1326(b)(2) are
unconstitutional. Monreal concedes that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998), but asserts that the decision has been cast into
*
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this opinion should not be published and is not precedent except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. 04-40547
-2-
doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Also
for the first time on appeal, Monreal asserts that if Almendarez-
Torres is overruled, the district court’s application of the 16-
level enhancement for his being deported following a conviction
for a drug trafficking offense for which a sentence greater than
13 months was imposed would be unconstitutional under Blakely v.
Washington, 124 S. Ct. 2531 (2004). He seeks to preserve his
arguments for further review and to avoid procedural default.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). The Supreme Court’s decisions in Blakely and
United States v. Booker, 125 S. Ct. 738 (2005), did not overrule
Almendarez-Torres. See Booker, 125 S. Ct. at 756; Blakely, 124
S. Ct. at 2536-43. This court must follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted). As Monreal concedes,
these arguments are foreclosed.
For the first time in his supplemental letter brief, Monreal
argues that his sentence is illegal under Booker because it was
imposed pursuant to a mandatory application of the sentencing
guidelines. As Monreal concedes, we review this issue only for
plain error because Monreal did not raise a Sixth Amendment
objection below. See United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005). In order to establish plain error, Monreal must
No. 04-40547
-3-
demonstrate that (1) there is an error; (2) that is plain by
being clear or obvious; and (3) that affects his substantial
rights. United States v. Olano, 507 U.S. 725, 731-37 (1993). If
these conditions are satisfied, we may exercise our discretion to
correct the error only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at
736-37 (internal quotation marks and citation omitted).
As the district court did not make any factual findings,
other than Monreal’s prior conviction, that enhanced Monreal’s
sentence, the district court did not commit a Sixth Amendment
violation. See Booker, 125 S. Ct. at 750, 769. Nevertheless,
the district court committed error that was plain by sentencing
Monreal under a mandatory application of the sentencing
guidelines. See United States v. Valenzuela-Quevedo, __ F.3d __,
No. 03-41754, 2005 WL 941353 at *4 (5th Cir. Apr. 25, 2005).
At sentencing, the district court stated that it would
sentence Monreal at the low end of the guidelines range but that
it did not have any latitude to further reduce his sentence. The
district court sentenced Monreal to the lowest sentence within
the guidelines sentencing range. Because Monreal can point to a
statement from the district court demonstrating a likelihood that
he would have received a lesser sentence under an advisory
application of the sentencing guidelines, he has shown that the
error affected his substantial rights and has met the third prong
No. 04-40547
-4-
of the plain error test. See United States v. Pennell, __ F.3d
__, No. 03-50926, 2005 WL 1030123 at *5 (5th Cir. May 4, 2005).
This court has held that errors in sentencing guidelines
calculations that increase a defendant’s sentence seriously
affect the fairness, integrity, or public reputation of judicial
proceedings. See United States v. Gracia-Cantu, 302 F.3d 308,
313 (5th Cir. 2002). Because Monreal has shown the likelihood
that the error in this case increased his sentence, he has shown
that the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. See Pennell, 2005 WL
1030123 at *5-*6.
The district court’s imposition of Monreal’s sentence
pursuant to a mandatory application of the sentencing guidelines
was plainly erroneous. Accordingly, Monreal’s sentence is
VACATED, and this case is REMANDED to the district court for
resentencing consistent with Booker.