United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2005
Charles R. Fulbruge III
Clerk
No. 04-50995
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS LUNA-CANO, also known as Miguel Luna-Ontiveros,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-534-ALL-FM
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Luis Luna-Cano appeals his sentence for illegal
reentry. He argues that (1) his sentence violates United States
v. Booker, 125 S. Ct. 738 (2005), insofar as it was enhanced
based on findings made by the district court relevant to his
criminal history score; (2) his sentence violates Booker insofar
as he was sentenced under the mandatory Sentencing Guideline
regime; and (3) 8 U.S.C. § 1326(b)(1)&(2) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
*
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this opinion should not be published and is not precedent except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. 04-50995
-2-
Both of Luna’s Booker claims fail because he cannot show
that the alleged errors affected his substantial rights. See
United States v. Valenzuela-Quevedo, __F.3d__, 2005 WL 941353, at
*4 (5th Cir. Apr. 25, 2005); United States v. Mares, 402 F.3d
511, 521 (5th Cir. 2005), petition for cert. filed, No. 04-9517
(U.S. Mar. 31, 2005). The sentencing and revocation hearing
transcripts are silent regarding whether the district court would
have reached a different conclusion had the Guidelines been
advisory. Moreover, the facts that the district court imposed
the minimum illegal reentry sentence and ran Luna’s sentences
concurrently are, standing alone, no indication that the court
would have reached a different conclusion under an advisory
scheme. See United States v. Bringier, 405 F.3d 310, 317 n.4
(5th Cir. 2005). Luna therefore cannot carry his burden of
showing that the result likely would have been different had he
been sentenced under the advisory scheme, and he cannot show
plain error. See Mares, 402 F.3d at 522.
Luna correctly concedes that his Apprendi claim is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), see United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000), and he raises it solely to preserve its further review by
the Supreme Court. We must follow Almendarez-Torres “unless and
until the Supreme Court itself determines to overrule it.” Id.
(internal quotation marks and citation omitted).
AFFIRMED.