United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-41511
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS GIRON-DELGADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-472-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Carlos Giron-Delgado (Giron) pleaded guilty to illegal
reentry after deportation following a conviction for an aggravated
felony and was sentenced to 46 months of imprisonment, three years
of supervised release, and a $100 special assessment that was
ordered remitted on motion of the Government.
For the first time on appeal, Geron argues that under United
States v. Booker, 125 S. Ct. 738 (2005), he was sentenced pursuant
to an unconstitutional mandatory guideline system. He contends
*
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this opinion should not be published and is not precedent except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. 04-41511
-2-
that this argument is not precluded by his appeal waiver. In his
plea agreement, Geron agreed to waive his right to appeal his
sentence except in the case of “(a) a sentence imposed above the
statutory maximum; or (b) an ‘upward departure’ from the Sentencing
Guidelines.” However, at rearraignment the magistrate judge
described the applicable portion of Giron’s appeal waiver as
follows: “[Y]ou give up the right to appeal your case to a higher
court, except you could appeal from an illegal sentence.” In light
of the magistrate judge’s statement and the fact that the
magistrate judge did not ask Giron whether he had read the plea
agreement, reviewed it with his attorney, understood it, or entered
it voluntarily, it cannot be said that Giron knowingly waived the
right to raise the Booker issue, and, therefore, his appeal waiver
does not bar the instant appeal. See United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999).
Giron correctly acknowledges that his failure to raise the
Booker issue in the district court results in review for plain
error only. See United States v. Valenzuela-Quevedo, 407 F.3d 728,
732 (5th Cir. 2005). The district court’s application of the
Sentencing Guidelines in their mandatory form constituted error
that was plain. See id. at 733. However, Giron has not
established that the error affected his substantial rights because
he has not demonstrated that the record shows that the district
judge would have imposed a different or lesser sentence under a
Booker advisory regime. See id. Giron contends that the district
No. 04-41511
-3-
court’s error in sentencing him pursuant to a mandatory Sentencing
Guidelines regime is of a type that should be presumed to affect
his substantial rights. However, this argument is foreclosed. See
United States v. Malveaux, __F.3d__, No. 03-41618, 2005 WL 1320362,
at *1 n.9 (5th Cir. Apr. 11, 2005). Accordingly, Giron has not met
the requirements to show plain error.
Giron also argues for the first time on appeal that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional on their face and as applied in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000). Giron 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. As Giron concedes, this issue is foreclosed. See
Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000).
AFFIRMED.