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. 04-51002
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS GOMEZ-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-62-1-AML
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Luis Gomez-Garcia appeals his sentence imposed
following his guilty plea to illegal reentry after deportation.
He was sentenced to 77 months of imprisonment and three years of
supervised release. Gomez-Garcia argues that his sentence is
illegal pursuant to United States v. Booker, 125 S. Ct. 738
(2005). Gomez-Garcia has not established plain error with regard
to his Booker claim because he has not established that being
sentenced under a mandatory guidelines scheme affected his
*
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this opinion should not be published and is not precedent except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. 04-51002
-2-
substantial rights. The record does not indicate that the
district court “would have reached a significantly different
result” under a sentencing scheme in which the guidelines
were advisory only. See United States v. Mares, 402 F.3d 511,
520-22 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517); United States v. Valenzuela-Quevedo, 407 F.3d 728,
733-34 (5th Cir. 2005); United States v. Malveaux, __F.3d__,
No. 03-41618, 2005 WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).
Gomez-Garcia also asserts that, under the reasoning of
Apprendi v. New Jersey, 530 U.S. 466 (2000), 8 U.S.C. § 1326(b)
is unconstitutional because it treats a prior conviction as an
element of the offense rather than a sentence enhancement. As
Gomez-Garcia concedes, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
he seeks to preserve the issue for possible Supreme Court review.
This court must follow Almendarez-Torres “unless and until the
Supreme Court itself determines to overrule it.” United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (internal quotation
marks and citation omitted).
Accordingly, the district court’s judgment is AFFIRMED.