United States v. Silva-Ontiveros

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. 04-51199
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE SALVADOR SILVA-ONTIVEROS,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1130-ALL
--------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Salvador Silva-Ontiveros (“Silva”) appeals the 41-month

sentence imposed subsequent to his entry of a guilty plea to a

violation of 8 U.S.C. § 1326. Silva contends for the first time

on appeal that the district court erred, under United States v.

Booker, 125 S. Ct. 738 (2005), by sentencing him pursuant to a

Guideline scheme that the district court believed was mandatory.

Silva asserts that the error was plain and 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this opinion should not be published and is not precedent except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. 04-51199
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substantial rights and that we should exercise discretion and

correct the error.

Our review is for plain error. See United States v. Mares,

402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005)(No. 04-9517); see also United States v. Malveaux,

___F.3d___, No. 03-41618, 2005 WL 1320362 (5th Cir. Apr. 11,

2005). Silva must therefore show: “(1) error, (2) that is

plain, and (3) that affects his substantial rights.” Mares, 402

F.3d at 520 (internal quotations and citation omitted).

To demonstrate that the plain error affected his substantial

rights, Silva has the burden of showing that the error “affected

the outcome of the district court proceedings.” United States v.

Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005) (internal

quotations and citation omitted). He must demonstrate “that the

sentencing judge--sentencing under an advisory scheme rather than

a mandatory one--would have reached a significantly different

result.” Mares, 402 F.3d at 521.

Silva has not made the required showing. See Valenzuela-

Quevedo, 407 F.3d at 733-34. Silva has not identified any

grounds, and the record does not provide any indication “from

the sentencing judge’s remarks or otherwise,” to show that the

district court would have reached a different conclusion in a

post-Booker advisory Guideline sentencing proceeding. Mares,

402 F.3d at 522. Accordingly, Silva has not met his burden of
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showing that the error affected his substantial rights. See

Valenzuela-Quevedo, 407 F.3d at 733-34.

Silva contends that his sentence violates his right to due

process because it exceeds the maximum sentence authorized for

the offense that was charged in the indictment. Silva asserts

that the indictment alleged a violation of 8 U.S.C. § 1326(a) and

did not allege that he had a prior conviction; thus, he contends

that his 41-month sentence exceeds the maximum two-year penalty

authorized by 8 U.S.C. § 1326(a). Silva challenges the validity

of Almendarez-Torres v. United States, 523 U.S. 224 (1998), but

concedes that his argument is foreclosed and raises the issue

only to preserve it for Supreme Court review.

The Supreme Court has not overruled Almendarez-Torres, and

we must follow it unless and until the Supreme Court overrules

it. See Shepard v. United States, 125 S. Ct. 1254, 1262-63 & n.5

(2005); United States v. Alfaro, ___ F.3d ___, No. 04-40176, 2005

WL 976995, *5 (5th Cir. Apr. 28, 2005); United States v.

Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir. 2005).

Accordingly, Silva’s sentence is AFFIRMED.