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. 04-50749
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLIVO MEJIA-SOLANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-74-1-AML
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Olivo Mejia-Solano (Mejia) appeals his sentence following
his guilty-plea conviction of illegal reentry, in violation of
8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him
to 41 months of imprisonment, three years of supervised release,
and a $100 special assessment.
Mejia argues that 8 U.S.C. § 1326(b) is unconstitutional
under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it
does not require the fact of a prior felony or aggravated-felony
*
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this opinion should not be published and is not precedent except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. 04-50749
-2-
conviction to be charged in the indictment and proved beyond a
reasonable doubt. As Mejia concedes, this argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
Almendarez-Torres was not overruled by Apprendi. See United
States v. Sarmiento-Funes, 374 F.3d 336, 346 (5th Cir. 2004).
For the first time on appeal, Mejia argues that, under
United States v. Booker, 125 S. Ct. 738 (5th Cir. 2005), this
court must vacate his sentence and remand for resentencing
because the mandatory guideline regime was in place at the time
of his sentencing. An unpreserved challenge to the computation
of a defendant’s sentence under the formerly mandatory sentencing
guidelines is reviewed for plain error. United States v. Mares,
402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517).
The district court’s application of the guidelines in their
mandatory form constituted error that is “plain” for purposes of
satisfying the first two prongs of the plain error analysis. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.
2005). Mejia also bears the burden of demonstrating “that the
sentencing judge--sentencing under an advisory scheme rather than
a mandatory one--would have reached a significantly different
result.” See Mares, 402 F.3d at 521. Mejia has failed to make
such a showing. Accordingly, the judgment of the district court
is AFFIRMED.