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. 04-50422
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME RODRIGUEZ-MORENO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-816-ALL-AML
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jaime Rodriguez-Moreno (Rodriguez) appeals from his guilty-
plea conviction for illegal reentry into the United States
following deportation. Rodriguez first argues that his sentence
is unconstitutional because it was enhanced for a prior
aggravated felony under 8 U.S.C. § 1326(b). Rodriguez correctly
acknowledges that his argument is foreclosed; he raises the issue
solely to preserve it for further review. See Almendarez-Torres
*
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this opinion should not be published and is not precedent except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. 04-50422
-2-
v. United States, 523 U.S. 224 (1998); see also United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
For the first time on appeal, Rodriguez argues that his
enhanced sentence violates United States v. Booker, 125 S. Ct.
738 (2005), because it was based upon facts that were neither
submitted to a jury nor admitted by Rodriguez. Specifically,
Rodriguez contends that the district court committed plain error
with respect to the U.S.S.G. § 4A1.1(d) and (e) criminal history
determinations that Rodriguez committed the instant offense
1) while on supervised release and 2) within two years after his
release from custody on his prior drug-trafficking conviction.
He further contends that his sentence is unconstitutional because
it was imposed pursuant to a mandatory application of the
sentencing guidelines.
Because Rodriguez did not raise these issues in the district
court, this court reviews the arguments for plain error. See
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517); United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005).
Under this standard, Rodriguez must show: (1) an error; (2) that
is clear or plain; (3) that affected his substantial rights; and
(4) that seriously affected the fairness, integrity or public
reputation of his judicial proceedings. See United States v.
Olano, 507 U.S. 725, 732-35 (1993).
No. 04-50422
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Rodriguez makes no showing that the district court would
likely have sentenced him differently under the Booker advisory
scheme. Similarly, there is no indication from the district
court’s remarks at sentencing that it would have reached a
different conclusion. Because Rodriguez has not demonstrated
that his substantial rights were affected, his arguments fail to
survive plain-error review. See Mares, 402 F.3d at 521-22;
Valenzuela-Quevedo 407 F.3d at 733-34.
AFFIRMED.