United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 7, 2005
Charles R. Fulbruge III
Clerk
No. 04-41505
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORENZO CASTILLO-MARTINEZ, also known as Lorenzo
Castillo-Bernal,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-522-ALL
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Lorenzo Castillo-Martinez appeals the sentence imposed
following his guilty-plea conviction for illegal reentry after
deportation, having previously been convicted of a drug
trafficking offense, in violation of 8 U.S.C. § 1326(a) & (b).
Castillo-Martinez 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 Castillo-Martinez did not raise this issue in
the district court, review is limited to plain error. See United
*
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this opinion should not be published and is not precedent except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. 04-41505
-2-
States v. Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert.
filed, (U.S. Mar. 31, 2005) (No. 04-9517). The district court
erred in imposing Castillo-Martinez’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).
However, Castillo-Martinez has not shown that the error affected
his substantial rights as he has not shown 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.
Castillo-Martinez also argues that the “felony” and
“aggravated felony” sentencing enhancements under 8 U.S.C.
§ 1326(b) are 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 he 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). This court 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).
AFFIRMED.