United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-41299
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDILBERTO RUBIO-ZARATE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-298-ALL
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Edilberto Rubio-Zarate appeals his guilty-plea sentence for
illegal reentry after deportation in violation of 8 U.S.C. § 1326
(a) and (b). He 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. He also
argues that the district court erred in assessing him two
criminal history points for his 1999 conviction of illegal
reentry because he did not knowingly and intelligently waive his
*
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this opinion should not be published and is not precedent except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. 04-41299
-2-
Sixth Amendment right to counsel before entering an uncounseled
plea of guilty to the 1999 charge.
After Booker, it is clear that application of the federal
sentencing guidelines in their mandatory form constitutes error
that is plain. See United States v. Valenzuela-Quevedo, 407 F.3d
728, 732-33 (5th Cir. 2005). Rubio-Zarate’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).
Rubio-Zarate must show that the error affected his substantial
rights, and he has not done so. See Valenzuela-Quevedo, 407 F.3d
at 733-34. He also has not met his burden of showing that his
waiver of counsel in connection with the 1999 conviction was
invalid. See Iowa v. Tovar, 124 S. Ct. 1379, 1390 (2004). The
judgment of the district court is therefore AFFIRMED.