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opinion should not be published and is not precedent except under the limited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.
3