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. 04-41392
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL GARCIA-CERVANTES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-315-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Raul Garcia-Cervantes 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). Garcia-
Cervantes 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this opinion should not be published and is not precedent except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. 04-41392
-2-
Garcia-Cervantes 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 Garcia-Cervantes’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 733-34. However, nothing in the
record indicates that the plain error affected Garcia-Cervantes’s
substantial rights. See id. Accordingly, Garcia-Cervantes’s
sentence is AFFIRMED.