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. 04-41116
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS VALDEZ-JAIMES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-347-1
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Luis Valdez-Jaimes appeals his sentence following his
guilty-plea conviction of one charge of illegal reentry into the
United States. Valdez-Jaimes argues that the district court
erred in sentencing him under a mandatory sentencing guidelines
scheme. He acknowledges that this claim is reviewed for plain
error only, but he contends that he does not have to demonstrate
any effect on his substantial rights because the error is
structural and because prejudice should be presumed.
*
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this opinion should not be published and is not precedent except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. 04-41116
-2-
The district court committed error that is plain by
sentencing Valdez-Jaimes under a mandatory sentencing guidelines
regime. See United States v. Mares, 402 F.3d 511, 520-21 (5th
Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No. 04-
9517); United States v. Valenzuela-Quevedo, 407 F.3d 728, 733
(5th Cir. 2005). Nevertheless, Valdez-Jaimes has not carried his
burden of showing that the district court’s error affected his
substantial rights. See Valenzeuela-Quevedo, 407 F.3d at 733-34;
Mares, 402 F.3d at 521. Valdez-Jaimes’s contention that this
error is structural and gives rise to a presumption of prejudice
is unavailing. See United States v. Malveaux, ___ F.3d ___, No.
03-41618, 2005 WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).
Valdez-Jaimes has not shown that he should receive relief on this
claim.
Valdez-Jaimes’s argument that the sentencing provisions in
8 U.S.C. § 1326(b) are unconstitutional is, as he concedes,
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). See Apprendi v. New Jersey, 530 U.S. at 466 (2000);
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Valdez-Jaimes has shown no reversible error in the district
court’s judgment. Consequently, that judgment is AFFIRMED.