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. 04-50913
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIUD CRUZ-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:04-CR-92-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Eliud Cruz-Gonzalez pleaded guilty to an indictment charging
him with illegal reentry following deportation. Cruz was
sentenced to an 84-month term of imprisonment and to a three-year
period of supervised release. Cruz has appealed his sentence.
Cruz contends for the first time on appeal that, under
United States v. Booker, 125 S. Ct. 738 (2005), the district
court erred by imposing sentence under mandatory sentencing
guidelines. We review this issue for plain error. See 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this opinion should not be published and is not precedent except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.
No. 04-50913
-2-
States v. Valenzuela-Quevado, 407 F.3d 728, 732 (5th Cir. 2005).
Cruz has not carried his burden of showing that his substantial
rights were affected. See United States v. Mares, 402 F.3d 511,
521–22 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517).
Cruz contends that, in light of Apprendi v. New Jersey, 530
U.S. 466 (2000), his sentence violated due process because it
exceeded the maximum imprisonment and supervised-release terms
for the offense charged in the indictment. Cruz concedes that
this issue is foreclosed under Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). He raises the issue to
preserve it for further review. The judgment is
AFFIRMED.