United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-40337
c/w 04-40476
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABEL GARCIA-OCHOA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-779-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Abel Garcia-Ochoa appeals the revocation of his supervised
release and the sentence imposed following his guilty plea to
illegal reentry. We affirm.
Even if we assume arguendo that the district court violated
FED. R. CRIM. P. 32 in failing to allow Garcia the right of
allocution at his revocation hearing, his claim fails because he
cannot show plain error. See United States v. Reyna, 358 F.3d
344, 353 (5th Cir.) (en banc), cert. denied, 124 S. Ct. 2390
*
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this opinion should not be published and is not precedent except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. 04-40337
c/w No. 04-40476
-2-
(2004). The record reveals that Garcia was sentenced at the
bottom of the Guideline range applicable to the revocation of his
supervised release, and it does not reveal that there were
disputed facts, which, if resolved in Garcia’s favor, would have
reduced his sentence. See id. Garcia therefore cannot show that
the alleged error affected his substantial rights. See id.
Garcia correctly concedes that his constitutional challenge
to 8 U.S.C. § 1326(b) is foreclosed, and he raises it only to
preserve its further review by the Supreme Court. See
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998);
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Finally, Garcia’s claim, raised for the first time on
appeal, that he is entitled to resentencing because he was
sentenced under the mandatory Guideline regime held
unconstitutional in United States v. Booker, 125 S. Ct. 738
(2005), does not survive plain error review. See United States
v. Martinez-Lugo, __ F.3d__, No. 04-40478, 2005 WL 1331282, at *2
(5th Cir. June 7, 2005). The district court sentenced Garcia to
the middle of the applicable Guideline range, implicitly
rejecting the arguments made in mitigation. Garcia has therefore
not shown that the error affected the outcome of his illegal
reentry sentencing, and he has thus not carried his burden of
showing that the error affected his substantial rights. Id.
AFFIRMED.