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. 04-50415
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE ESPINOZA-GAMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-720-ALL-AML
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Espinoza-Gamez (Espinoza-Gamez) appeals his
guilty plea conviction and sentence for illegal reentry following
deportation in violation of 8 U.S.C. § 1326.
For the first time on appeal, Espinoza-Gamez contends that
the district court violated his Fifth and Sixth Amendment rights
when it enhanced his sentence based on facts that were neither
admitted by him nor found by a jury beyond a reasonable doubt.
Because Espinoza-Gamez did not object on this basis in the
*
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this opinion should not be published and is not precedent except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. 04-50415
-2-
district court, this court’s review is for plain error. See
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
The district court erred when it sentenced Espinoza-Gamez
pursuant to the mandatory guideline system held unconstitutional
in United States v. Booker, 125 S. Ct. 738 (2005). See United
States v. Valenzuela-Quevedo, F.3d , No. 03-41754, 2005 WL
941353, at *4 (5th Cir. Apr. 25, 2005) (“It is clear after Booker
that application of the Guidelines in their mandatory form
constitutes error that is plain.”). However, Espinoza-Gamez has
failed to point to any evidence in the record indicating that the
same sentence would not have been imposed had the district court
known that the Sentencing Guidelines were advisory. The record
itself gives no indication that the district court would have
reached a different result under an advisory guidelines system.
Although the district court sentenced Espinoza-Gamez at the
lowest end of the guideline range, it found no reason to depart
from that range. Given the lack of evidence indicating that the
district court would have reached a different conclusion,
Espinoza-Gamez has not demonstrated that his substantial rights
were affected, and, thus, he has failed to establish plain error.
See Mares, 402 F.3d at 520-22.
Espinoza-Gamez also contends that his sentence violated due
process because it exceeded the statutory maximum for the charged
offense. Specifically, he argues that because a prior qualifying
No. 04-50415
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conviction was not alleged in the indictment, he was subject to a
statutory maximum of two years of imprisonment under 18 U.S.C.
§ 1326(a). He concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
seeks to preserve the issue for possible Supreme Court review.
As Espinoza-Gamez concedes, this issue is foreclosed. See
Almendarez-Torres, 523 U.S. at 247; United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000).
Accordingly, the district court’s judgment is AFFIRMED.