United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-20474
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRUZ MARTINEZ-CANTU,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-454-1
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Cruz Martinez-Cantu (Martinez) appeals his guilty-plea
conviction and sentence for illegally reentering the United
States after deportation. He argues for the first time on appeal
that the sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2)
are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). Martinez acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but he seeks to preserve the issue for Supreme Court
*
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this opinion should not be published and is not precedent except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. 04-20474
-2-
review. 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).
Also for the first time on appeal, Martinez argues that the
district court erred in imposing a sentence under a mandatory
guideline scheme, in violation of United States v. Booker, 125
S. Ct. 738, 756-57 (2005). Because he did not raise this issue
in the district court, this court reviews the argument for plain
error. See United States v. Valenzuela-Quevedo, 407 F.3d 728,
732-33 (5th Cir. 2005). Martinez makes no showing, as required
by Valenzuela-Quevedo, that the district court would likely have
sentenced him differently under an advisory sentencing scheme.
See id. at 733-34. Similarly, there is no indication from the
court’s remarks at sentencing that the court would have imposed a
sentence below the appropriate guideline range. Thus, Martinez
has not met his burden to show that the district court’s
imposition of a sentence under a mandatory guideline scheme was
plain error. See id.; see also United States v. Olano, 507 U.S.
725, 732-35 (1993). Accordingly, Martinez’s conviction and
sentence are AFFIRMED.