United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 28, 2005
Charles R. Fulbruge III
Clerk
No. 04-41168
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE FONSECA-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-220-ALL
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Guadalupe Fonseca-Sanchez (Fonseca) appeals from his guilty
plea conviction for being unlawfully found in the United States
following deportation, having previously been convicted of an
aggravated felony. Fonseca contends that the district court
erred by considering a prior assault conviction in imposing his
sentence, after having sustained Fonseca’s objection to the
conviction. He also urges the overruling of Almendarez-Torres v.
United States, 523 U.S. 224 (1998) and requests that the rule of
*
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this opinion should not be published and is not precedent except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. 04-41168
-2-
Blakely v. Washington, 124 S. Ct. 2531 (2004) be applied to the
Federal Sentencing Guidelines.
Fonseca first claims that the district court incorrectly
believed that the applicable guideline range was 21-27 months
rather than 18-24 months. This claim is wholly without merit, as
the court clearly stated he was sentencing Fonseca to the high
end of the guideline range at 24 months.
Fonseca argues that the district court relied on the
material unreliable information of the assault conviction in
imposing his sentence. In reviewing a sentence imposed under the
guidelines, this court reviews the district court’s application
or interpretation de novo and factual findings for clear error.
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). The
recent decision in United States v. Booker, 125 S. Ct. 738
(2005), has not altered the standard of review in cases where the
district court imposed a sentence under the guidelines. United
States v. Villegas, F.3d , 03-21220, 2005 WL 627963, *4-5
(5th Cir. Mar. 17, 2005).
The record reveals that the district court, while sentencing
Fonseca to the high end of the guideline range, did not rely on
the assault conviction when imposing his sentence. Rather, the
court’s comments on the prior conviction were used to dispel
Fonseca’s argument that he was entitled to a downward departure
from the guidelines. Regardless, the ruling by the district
court sustaining the objection had no practical effect on
No. 04-41168
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Fonseca’s sentencing range. Nothing indicates that the court’s
decision to sentence Fonseca at the high end of the range was
based on the contested assault conviction.
Fonseca next asserts that Almendarez-Torres v. United States
should be overruled in light of Blakely v. Washington and
Apprendi v. New Jersey, 520 U.S. 466 (2000). He acknowledges
that this issue is foreclosed but raises it to preserve for
further review. Neither Apprendi nor Blakely overruled
Almendarez-Torres. This issue is foreclosed.
Finally, Fonseca argues for the first time on appeal that
Blakely should be applied to the Federal Sentencing Guidelines.
The United States Supreme Court applied the rule of Blakely to
the guidelines in United States v. Booker, 125 S. Ct. 738, 756
(2005). Fonseca does not argue the application of Booker to his
case other than simply stating the guidelines are
unconstitutional. Therefore he presents no issue for this court
to review and, in any event, falls woefully short of
demonstrating plain error that would warrant a reversal of his
sentence. See United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005).
Accordingly, Fonseca’s sentence is AFFIRMED.