United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-40813
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN VERASTEGUI-GARCIA,
also known as Ruben Garcia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-219-ALL
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Before HIGGINBOTHAM, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Having pleaded guilty pursuant to a plea agreement, Ruben
Verastegui-Garcia (“Verastegui”) appeals his sentence for being
illegally present in the United States after having been
deported, in violation of 8 U.S.C. § 1326(a) and (b). Verastegui
argues that the Government breached the plea agreement by failing
to move at sentencing for a two-level downward departure from the
federal Sentencing Guidelines pursuant to U.S.S.G. § 5K3.1; that
his sentence must be vacated in light of United States v. Booker,
*
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this opinion should not be published and is not precedent except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. 04-40813
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125 S. Ct. 738 (2005) because the district court was under the
impression that the Sentencing Guidelines were mandatory rather
than advisory; and that 8 U.S.C. § 1326(b) is unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Verastegui
concedes that his third argument is foreclosed by this court’s
precedent, but he raises the issue to preserve it for Supreme
Court review.
Because Verastegui did not object at sentencing to the
Government’s alleged breach of the plea agreement, we review his
argument for plain error and find none. United States v. Reeves,
255 F.3d 208, 210 (5th Cir. 2001). The district court was aware
that the Government had recommended a departure pursuant to
U.S.S.G. § 5K3.1, and the court made it clear that it had no
intention of granting such a departure under any circumstances.
Reeves, 255 F.3d at 210-11 & n.3; United States v. Calverley, 37
F.3d 160, 164 (5th Cir. 1994) (en banc).
We review Verastegui’s challenge to his sentence under
mandatory Sentencing Guidelines for plain error because he did
not raise the issue in the district court. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005). We agree
with Verastegui that the district court erred when it sentenced
him pursuant to a mandatory guidelines system. See Booker, 125
S. Ct. at 750, 768-69. Nevertheless, as the record does not
suggest in any way that the district court would have imposed a
different sentence had it been aware that the sentencing
No. 04-40813
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guidelines are merely advisory, Verastegui has not met his burden
of establishing plain error. Valenzuela-Quevedo, 407 F.3d 728,
733 (5th Cir. 2005).
We reject Verastegui’s challenge to the constitutionality of
8 U.S.C. § 1326. See Almendarez-Torres v. United States, 523
U.S. 224 (1998); Apprendi, 530 U.S. at 489-90. This court must
follow the precedent set in Almendarez-Torres unless and until
the decision is overruled by the Supreme Court. Randell v.
Johnson, 227 F.3d 300, 301 (5th Cir. 2000)
AFFIRMED.