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. 04-41169
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNANDINO FRIAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-322-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Bernandino Frias appeals his guilty-plea sentence for
illegal reentry after deportation in violation of 8 U.S.C. § 1326
(a) and (b). He argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Frias
also argues that, in light of United States v. Booker, 125 S. Ct.
738 (2005), the district court plainly erred in sentencing him
under a mandatory guidelines system.
*
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this opinion should not be published and is not precedent except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. 04-41169
-2-
Frias acknowledges that his first argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
wishes to preserve the issue for Supreme Court review in light of
Apprendi. 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). Thus, 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).
We review Frias’s second argument, challenging the
imposition of his sentence under a mandatory sentencing
guidelines scheme, for plain error. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005); see also
United States v. Malveaux, __F.3d__, No. 03-41618, 2005 WL
1320362 at *1 n.9 (5th Cir. Apr. 11, 2005). After Booker, it is
clear that application of the federal sentencing guidelines in
their mandatory form constitutes error that is plain.
Valenzuela-Quevedo, 407 F.3d at 733. Frias has not shown,
however, that the plain error affected his substantial rights.
See id. at 733-34. Accordingly, Frias’s sentence is AFFIRMED.