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. 04-20818
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DIAZ-RENDON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-98-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Diaz-Rendon appeals his guilty-plea conviction and
sentence for illegal reentry following deportation. Diaz-Rendon
contends that his sentence is invalid in light of United States
v. Booker, 125 S. Ct. 738 (2005), because the sentencing judge
applied the sentencing guidelines as if they were mandatory.
Because Diaz-Rendon did not raise this issue in the district
court, we review it only for plain error. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005); see also
*
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this opinion should not be published and is not precedent except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. 04-20818
-2-
United States v. Malveaux, ___F.3d___, No. 03-41618, 2005 WL
1320362 (5th Cir. Apr. 11, 2005).
Diaz-Rendon fails to identify anything in the record to
suggest that his sentence would have been any less had the court
applied the sentencing guidelines as advisory rather than
mandatory. Valenzuela-Quevedo, 407 F.3d at 733-34. He thus
fails to establish prejudice to his substantial rights. See id.
Diaz-Rendon argues pursuant to Apprendi v. New Jersey, 530
U.S. 466 (2000), that Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), should be overruled. He concedes that his
constitutional argument is foreclosed by Almendarez-Torres, and
he raises it solely to preserve its 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). The Supreme Court’s recent decisions in Shepard
v. United States, 125 S. Ct. 1254, 1262-63 & n.5 (2005), Booker,
and Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004), also did
not overrule Almendarez-Torres. We therefore must follow
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted). The judgment of the
district court is AFFIRMED.