United States Court of Appeals
Fifth Circuit
F I L E D
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-41254
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO GARZA-MIRANDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-314-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Alberto Garza-Miranda (“Garza”) appeals the 33-month
sentence of imprisonment imposed following his guilty-plea
conviction of one count of being found illegally in the United
States following removal. See 8 U.S.C. § 1326(a), (b).
Garza, relying on Blakely v. Washington, 124 S. Ct. 2531
(2004), argues that the district court violated his rights under
the Sixth Amendment by enhancing his sentence by 16 levels under
U.S.S.G. § 2L1.2(b)(1)(A)(i). The Sixth Amendment holding 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this opinion should not be published and is not precedent except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. 04-41254
-2-
Blakely applies to the federal sentencing guidelines. See United
States v. Booker, 125 S. Ct. 738, 746 (2005). Because Garza did
not raise his argument in the district court, our review is for
plain error only. See United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517). Our review of the record reveals no indication
that the district court, sentencing under an advisory scheme
rather than a mandatory one, would have reached a significantly
different result as to Garza’s sentence. See id. at 521.
Because Garza cannot establish that his substantial rights were
affected, he cannot establish plain error. See id. Accordingly,
the judgment of the district court is AFFIRMED.