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. 04-40872
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO ROSAS-DIAZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-252-1
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Fernando Rosas-Diaz (Rosas) appeals his guilty-plea
conviction and sentence for illegal reentry following
deportation. Rosas 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 Rosas 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
*
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this opinion should not be published and is not precedent except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. 04-40872
-2-
also United States v. Malveaux, ___F.3d___, No. 03-41618, 2005 WL
1320362 (5th Cir. Apr. 11, 2005). To prevail under a plain error
analysis, Rosas must show, among other things, that the error
prejudiced him by adversely affecting his substantial rights.
Valenzuela-Quevedo, 407 F.3d at 733.
Rosas 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.
See id. at 733-34. He thus fails to establish prejudice to his
substantial rights. See id.
Rosas 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 it for Supreme Court 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). 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 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).
AFFIRMED.