United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 3, 2005
Charles R. Fulbruge III
Clerk
No. 04-41475
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE HORACIO VANEGAS-MALDONADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(1:04-CR-343-ALL)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Horacio Vanegas-Maldonado appeals the
sentence imposed following his guilty-plea conviction for being
found unlawfully in the United States after deportation, having
previously been convicted of an aggravated felony in violation of
8 U.S.C. § 1326(a) & (b). The government argues that Vanegas-
Maldonado knowingly and voluntarily waived the right to appeal his
sentence as part of his plea agreement and, therefore, that his
appeal should be dismissed for lack of jurisdiction. In his plea
*
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this opinion should not be published and is not precedent except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.
agreement, Vanegas-Maldonado waived the right to appeal his
sentence, except that he reserved the right to appeal a sentence
imposed above the statutory maximum or an upward departure above
the Sentencing Guidelines range. At the rearraignment hearing, the
magistrate judge advised Vanegas-Maldonado that he was waiving his
right to appeal; however, the magistrate judge altered the terms of
the waiver provision by informing Vanegas-Maldonado that he could
appeal an “illegal sentence.” In view of this statement, we
pretermit whether Vanegas-Maldonado knowingly waived his right to
appeal his sentence.
Vanegas-Maldonado argues that the district court erred in
imposing his sentence under the mandatory Guidelines scheme held
unconstitutional in United States v. Booker, 125 S. Ct. 738 (2005).
Because Vanegas-Maldonado did not raise this issue in the district
court, review is limited to plain error. See United States v.
Vonn, 535 U.S. 55, 59 (2002). The district court erred in imposing
Vanegas-Maldonado’s sentence under the mandatory Guidelines scheme,
and the error was obvious after Booker. See United States v.
Valenzuela-Quevedo, ___ F.3d ___, No. 03-41754, 2005 WL 941353 at
*4 (5th Cir. Apr. 25, 2005). Vanegas-Maldonado has not shown,
however, that the error affected his substantial rights, as he has
not demonstrated that the record shows the district court judge
would have imposed a different or lesser sentence under a Booker
advisory regime. See id. at **4-5. Therefore, he has not met the
requirements to show plain error.
2
Vanegas-Maldonado also contends that the “felony” and
“aggravated felony” sentencing enhancements under 8 U.S.C.
§ 1326(b) are facially unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466 (2000). He acknowledges that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but seeks to preserve it for possible Supreme Court review.
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90; United States v. Sarmiento-Funes, 374 F.3d 336, 346
(5th Cir. 2004). Therefore, we must follow Almendarez-Torres,
“‘unless and until the Supreme Court itself determines to overrule
it.’” United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.),
(citation omitted), cert. denied, 540 U.S. 935 (2003); so Vanegas-
Maldonado has not established error with respect to his sentence
under 8 U.S.C. § 1326(b).
AFFIRMED.
3