United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-40850
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS MARTINEZ-SALDANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:02-CR-1596-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Luis Martinez-Saldana (Martinez) appeals his sentence
for illegal reentry following deportation, in violation of 8
U.S.C. § 1326. We AFFIRM.
Martinez contends for the first time on appeal that, under
United States v. Booker, 125 S. Ct. 738 (2005), the district
court erred by imposing sentence under mandatory sentencing
guidelines. We review this issue for plain error. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005).
*
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this opinion should not be published and is not precedent except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. 04-40850
-2-
Martinez has not carried his burden of showing that his
substantial rights were affected. See United States v. Mares,
402 F.3d 511, 521–22 (5th Cir. 2005), petition for cert. filed
(U.S. Mar. 31, 2005) (No. 04-9517); United States v. Malveaux,
__ F.3d __, No. 03-41618, 2005 WL 1320362 at *1 n.9 (5th Cir.
Apr. 11, 2005).
Martinez contends that, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), and other cases, his sentence violated due
process because it exceeded the maximum imprisonment and
supervised-release terms for the offense charged in the
indictment. Martinez concedes that this issue is foreclosed
under Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). He raises the issue to preserve it for further review.
Martinez contends that the district court erred by holding
that his North Carolina conviction for taking indecent liberties
with a minor constituted a “crime of violence” under U.S.S.G.
§ 2L1.2(b), resulting in his receiving a more onerous sentence.
Martinez concedes that this issue is foreclosed by United States
v. Izaguirre-Flores, 405 F.3d 270, 271 (5th Cir. 2005), but he
desires to preserve it for further review.
The judgment is AFFIRMED.