United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 3, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50964
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT CARDENAS-TAPIA, also known as Roberto Cardenas-Tapia,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-130-1-WWJ
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Cardenas-Tapia challenges the sentence he received
following his guilty-plea conviction for illegally reentering the
United States, a violation of 8 U.S.C. § 1326. Cardenas argues,
for the first time on appeal, that the district court plainly
erred under United States v. Booker, 125 S. Ct. 738 (2005), when
it sentenced him under a mandatory guideline sentencing scheme.
The argument is reviewed for plain error. United States v.
*
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this opinion should not be published and is not precedent except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. 04-50964
-2-
Mares, 402 F.3d 511, 520 (5th Cir.), petition for cert. filed,
No. 04-9517 (U.S. Mar. 31, 2005).
In light of Booker, the district court clearly erred in
computing Cardenas’s sentence under a mandatory guidelines
system. See United States v. Valenzuela-Quevedo, ___ F.3d ___,
No. 03-41754, 2005 WL 941353, *4 (5th Cir. Apr. 25, 2005).
Nevertheless, because Cardenas has not demonstrated that the
district court would have imposed a different sentence had it
known that the sentencing guidelines were advisory only, he has
failed to demonstrate that the error affected his substantial
rights.** Mares, 402 F.3d at 521-22. Accordingly, Cardenas has
failed to carry his burden of demonstrating plain error.
Cardenas concedes that the issue whether 8 U.S.C.
§ 1326(b)(1) & (b)(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 it
for 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
**
Cardenas’s argument that Mares was wrongly decided is
unavailing. Absent en banc reconsideration or a superseding
contrary decision of the Supreme Court, one panel may not
overrule the decision of a prior panel. United States v. Ruff,
984 F.2d 635, 640 (5th Cir. 1993).
No. 04-50964
-3-
Supreme Court itself determines to overrule it.” Dabeit,
231 F.3d at 984.
AFFIRMED.