United States v. Ramirez-Sanchez

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. 04-50493
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO FRANCISCO RAMIREZ-SANCHEZ,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-817-1-AML

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Roberto Francisco Ramirez-Sanchez (“Ramirez”) pleaded

guilty to illegal reentry into the United States following

deportation. He was sentenced to thirty-six months of

imprisonment. Ramirez argues that his sentence is unconstitutional

because it was enhanced for a prior aggravated felony under

8 U.S.C. § 1326(b). Ramirez acknowledges that his argument was

rejected by the Supreme Court in Almendarez-Torres v. United

*
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opinion should not be published and is not precedent except under the limited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.
States, 523 U.S. 224 (1998), but argues that he is raising it to

preserve it for further review.

In Almendarez-Torres, 523 U.S. at 235, the Supreme Court

held that a prior conviction is a sentencing factor under 8 U.S.C.

§ 1326(b) and not a separate element of a criminal offense.

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), did not overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). The

Supreme Court’s decisions in Blakely v. Washington, 124 S. Ct. 2531

(2004), and United States v. Booker, 125 S. Ct 738 (2005) did not

overrule Almendarez-Torres. See Booker, 125 S. Ct. at 756;

Blakely, 124 S. Ct. at 2536-43. This court does not have the

authority to overrule Almendarez-Torres. See Dabeit, 231 F.3d at

984. Thus, Ramirez’s argument is foreclosed.

For the first time on appeal, Ramirez argues that his

sentence is unconstitutional, in light of Booker, because his

sentence was increased based upon facts that he did not admit.

Specifically, he contends that the district court’s determination,

pursuant to U.S.S.G. § 4A1.1(d), that he was on parole at the time

he committed the instant offense violated his Sixth Amendment

rights. He further contends that his sentence is unconstitutional

because it was imposed pursuant to a mandatory application of the

sentencing guidelines.

Because Ramirez did not raise these issues in the

district court, this court reviews the arguments for plain error.

2
See United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),

petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517); United

States v. Valenzuela-Quevedo, ___ F.3d ___, No. 03-41754, 2005 WL

941353 *4 (5th Cir. Apr. 25, 2005). Thus, Ramirez 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. United

States v. Olano, 507 U.S. 725, 732-35 (1993).

Ramirez 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 court’s remarks

at sentencing that the court would have reached a different

conclusion. Thus, Ramirez has not demonstrated that his substan-

tial rights were affected, and he has thus failed to carry his

burden under plain-error review. See Mares, 402 F.3d at 521-22;

Valenzuela-Quevedo, 2005 WL 941353 at *4. Accordingly, Ramirez’s

sentence is AFFIRMED.