United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-51114
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR REYES-CARMONA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-829-ALL
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Victor Reyes-Carmona appeals his sentence following his guilty
plea conviction for illegal reentry after deportation, a violation
of 8 U.S.C. § 1326. Relying on the recent Supreme Court decision
in United States v. Booker, 125 S.Ct. 738 (2005), Reyes-Carmona
first argues that the district court erred by sentencing him under
a mandatory guidelines scheme. Because he did not raise any
constitutional challenge in the district court to the computation
of his sentence, we review 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this opinion should not be published and is not precedent except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. 04-51114
-2-
Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517). We agree that the district
court erred when it sentenced him pursuant to a mandatory
guidelines system. Id. at 750, 768-69. Nevertheless, as the
record does not suggest that the district court would have imposed
a different sentence had it been aware that the sentencing
guidelines are advisory, Reyes-Carmona has not met his burden of
establishing plain error. See United States v. Valenzuela-Quevedo,
__ F.3d __, No. 03-41754, 2005 WL 941353, at **3-4 (5th Cir. April
25, 2005).
Reyes-Carmona also argues that the prior conviction that
resulted in his increased sentence is an element of a separate
offense under 8 U.S.C. § 1326(b) that should have been alleged in
his indictment. In Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), the Supreme Court held that the enhanced penalties
in 8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. Reyes-Carmona acknowledges that his argument is
foreclosed, but he seeks to preserve this argument for further
review in light of Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90. This court must follow the precedent
set in Almendarez-Torres unless the Supreme Court overrules it.
See United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001).
The judgment of the district court is AFFIRMED.