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. 04-20872
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MEJILLA-HERNANDEZ, also known as Clovis Andres Reyes,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-169-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Carlos Mejilla-Hernandez appeals his sentence imposed
following his guilty plea to illegal reentry after deportation.
He was sentenced to 29 months of imprisonment and three years of
supervised release. He argues that, in light of United States v.
Booker, 125 S. Ct. 738 (2005), his sentence is invalid because
the district court applied the sentencing guidelines as if they
were mandatory. Because Mejilla-Hernandez did not raise this
issue in the district court, we review it only for plain error.
*
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this opinion should not be published and is not precedent except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. 04-20872
-2-
United States v. Mares, 402 F.3d 511, 513, 520-22 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517);
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.
2005); United States v. Malveaux, __F.3d__, No. 03-41618, 2005 WL
1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).
As Mejilla-Hernandez concedes, he is unable to establish
plain error with regard to his Booker claim because he cannot
establish that being sentenced under a mandatory guidelines
scheme affected his substantial rights. The record does not
indicate that the district court “would have reached a
significantly different result” under a sentencing scheme in
which the guidelines were advisory only. See Mares, 402 F.3d at
520-22; Valenzuela-Quevedo, 407 F.3d at 733-34.
Mejilla-Hernandez also asserts that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(a) and (b) are
unconstitutional. He acknowledges that his argument is
foreclosed, but he seeks to preserve the issue for possible
Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), and Shepard v. United States, 125 S. Ct. 1254 (2005).
This issue is foreclosed. See Almendarez-Torres v. United
States, 523 U.S. 224, 247 (1998); United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000).
Accordingly, the judgment of the district court is AFFIRMED.