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. 04-41167
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALEJANDRO MELENDEZ-MONTOYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-179-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Alejandro Melendez-Montoya appeals his guilty-plea
conviction and sentence for being found in the United States,
without permission, following his conviction of an aggravated
felony and subsequent deportation. See 8 U.S.C. § 1326(a), (b).
Melendez-Montoya argues that the sentencing provisions in
8 U.S.C. § 1326(b) are unconstitutional and should be severed
from the statute. Melendez-Montoya acknowledges that his
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), but seeks to preserve the issue for review
*
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this opinion should not be published and is not precedent except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. 04-41167
-2-
in light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
However, 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). This court 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).
Melendez-Montoya also argues that the district court erred
by sentencing him under the mandatory Sentencing Guidelines
scheme held unconstitutional in United States v. Booker, 125 S.
Ct. 738 (2005). As Melendez-Montoya raises his argument for the
first time on appeal, review is for plain error only. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005).
Melendez-Montoya has satisfied the first two prongs of the plain
error analysis by showing that the district court committed error
that was plain. Id. at 733. The error is not a structural one,
however, United States v. Malveaux, __F.3d__, No. 03-41618, 2005
WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005), and Melendez-
Montoya has not satisfied the third prong of the plain error
analysis by showing that the error affected his substantial
rights. See Valenzuela-Quevedo, 407 F.3d at 733.
Accordingly, the judgment of the district court is
AFFIRMED.