United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 2, 2005
Charles R. Fulbruge III
Clerk
No. 04-41187
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL CASTILLO-RESENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-391-ALL
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Rafael Castillo-Resendez appeals the sentence imposed
following his guilty plea to illegal reentry. We affirm.
Castillo argues for the first time on appeal that the
district court erred in sentencing him under the mandatory
Sentencing Guideline regime held unconstitutional in United
States v. Booker, 125 S. Ct. 738 (2005). Castillo, however, has
not borne his burden of establishing that the district court’s
error affected the outcome of his proceedings. See United States
*
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this opinion should not be published and is not precedent except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. 04-41187
-2-
v. Valenzuela-Quevedo, No. 03-41754, 2005 WL 941353, at *3 (5th
Cir. Apr. 25, 2005). The district court considered but denied
Castillo’s motion for a downward departure based on the violent
nature of his aggravated assault conviction. The record does
not indicate that the district court would have imposed a
“significantly different” sentence under an advisory scheme.
See United States v. Mares, 402 F.3d 511, 521 (5th Cir. Mar. 4,
2005), petition for cert. filed, (No. 04-9517 (U.S. Mar. 31,
2005). Castillo therefore has not shown plain error.
Castillo concedes that the issue whether 8 U.S.C.
§ 1326(b)(1)&(2) were rendered unconstitutional by Apprendi v.
New Jersey, 530 U.S. 466 (2000), and subsequent Supreme Court
precedent is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), and he raises it solely to preserve its
further review by the Supreme Court. 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). We
therefore must follow 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).
AFFIRMED.