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. 04-50687
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS HERRERA-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-210-ALL-PRM
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Carlos Herrera-Sanchez (Herrera) appeals the 60-month
sentence he received after pleading guilty to one count of
illegal reentry into the United States after having been
deported. See 8 U.S.C. § 1326.
Herrera contends that his sentence should have been limited
to two years because his indictment failed to allege a prior
felony conviction used to increase his sentence. As he concedes,
*
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this opinion should not be published and is not precedent except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. 04-50687
-2-
this contention is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998).
Herrera also contends that he is entitled to resentencing
because the district court sentenced him under a mandatory
application of the guidelines prohibited by United States v.
Booker, 125 S. Ct. 738, 756-57, 769 (2005). Herrera did not
raise this issue in the district court, so we review it for plain
error. See United States v. Valenzuela-Quevedo, 407 F.3d 728,
732 (5th Cir. 2005); see also United States v. Malveaux,
__F.3d__, No. 03-41618, 2005 WL 1320362 (5th Cir. Apr. 11, 2005).
Although there was an error under Booker, Herrera fails to
“demonstrate a probability sufficient to undermine confidence in
the outcome . . . that the district judge would have imposed a
different sentence” under advisory guidelines. Valenzuela-
Quevedo, 407 F.3d at 733 (internal quotation marks and citation
omitted). Herrera therefore fails to show that the error
affected his substantial rights as is necessary under the plain-
error standard. See id.; United States v. Mares, 402 F.3d 511,
521-22 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517).
The judgment of the district court is AFFIRMED.