United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-41450
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN LEDESMA-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-241-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Martin Ledesma-Sanchez (Ledesma) appeals his guilty-plea
conviction and sentence for attempted illegal reentry following
deportation. He argues for the first time on appeal that the
sentencing 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). Ledesma acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review. Apprendi
*
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this opinion should not be published and is not precedent except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. 04-41450
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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).
For the first time on appeal, Ledesma argues that the
district court erred in imposing a sentence under a mandatory
guideline scheme, in violation of United States v. Booker, 125
S. Ct. 738, 756-57 (2005). Because he did not raise this issue
in the district court, this court reviews the argument for plain
error. See United States v. Valenzuela-Quevedo, 407 F.3d 728,
732-33 (5th Cir. 2005). Ledesma makes no showing, as required by
Valenzuela-Quevedo, that the district court would likely have
sentenced him differently under an advisory sentencing scheme.
See id. at 733-34. Similarly, there is no indication from the
court’s remarks at sentencing that the district court would have
reached a different conclusion. Thus, Ledesma has not met his
burden to show that the district court’s imposition of a sentence
under a mandatory guideline scheme was plain error. See id.; see
also United States v. Olano, 507 U.S. 725, 732-35 (1993).
Ledesma’s conviction and sentence are affirmed.
Ledesma also contends that the written judgment incorrectly
reflects that he was convicted of being present in the United
States rather than of attempted illegal reentry, and he asks that
the district court amend the written judgment pursuant to FED.
R. CRIM. P. 36. The record reflects that Ledesma in fact pleaded
guilty to attempted illegal reentry. Accordingly, we remand to
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the district court for correction of the judgment pursuant to
FED. R. CRIM. P. 36 to reflect that Ledesma was convicted of a
violation of 8 U.S.C. § 1326 for attempted illegal reentry, not
illegal reentry, into the United states after deportation.
AFFIRMED and REMANDED.