United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-40884
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO ORTA-GOMEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-107-ALL
--------------------
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Eduardo Orta-Gomez (Orta) appeals the sentence imposed
following his guilty-plea conviction for illegal reentry
following deportation. See 8 U.S.C. § 1326. He argues that the
sentence enhancing provisions contained in 8 U.S.C. §§ 1326(b)(1)
and (b)(2) are unconstitutional. This argument is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Apprendi v. New Jersey, 530
U.S. 466 (2000), did not overrule Almendarez-Torres. See
*
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this opinion should not be published and is not precedent except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. 04-40884
-2-
Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000). The Supreme Court’s decisions in
Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States
v. Booker, 125 S. Ct. 738 (2005), did not overrule
Almendarez-Torres. See Booker, 125 S. Ct. at 756; Blakely, 124
S. Ct. at 2536-43. This court must follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted).
Orta argues that under Blakely, the enhancement of his
sentence based on his prior conviction was error. In Blakely,
the Supreme Court held that “the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the
basis of facts . . . admitted to by the defendant.” Blakely, 124
S. Ct. at 2537 (emphasis in original). However, Booker
reaffirmed the holding in Apprendi that prior convictions are
excluded from the facts that must be admitted or submitted to the
jury. See Booker, 125 S. Ct. at 756. Thus, Orta’s sentence was
not affected by a Sixth Amendment violation. See Booker, 125
S. Ct. at 750, 769.
Orta argues that because his sentence was imposed pursuant
to an unconstitutional, mandatory guidelines system, it is
unconstitutional and should be vacated. This is the type of
error that was experienced by the other respondent in Booker,
Ducan Fanfan. See Booker, 125 S. Ct. at 750, 768-69; see also
No. 04-40884
-3-
United States v. Mares, 402 F.3d 511, 518-20 & n.9 (5th Cir.
2005), petition for cert. filed, No. 04-9517 (U.S. Mar. 31,
2005). Because Orta did not raise this issue below, we review
for plain error only. See United States v. Valenzuela-Quevedo,
407 F.3d 728, 732 (5th Cir. 2005).
The “Fanfan” error was plain, meeting the first two prongs
of the plain error standard. See United States v. Martinez-Lugo,
__ F.3d __, 2005 WL 1331282 at *2 (5th Cir. June 7, 2005). In
order to show that the error meets the third prong and affected
his substantial rights, he must show that it affected the outcome
of the proceedings in the district court. Id. The error was not
structural and prejudice is not otherwise presumed. See id.;
United States v. Malveaux, __ F.3d __, 2005 WL 1320362 at *1 n.9
(5th Cir. Apr. 11, 2005). Orta cannot show that he was
prejudiced by the error because the district court sentenced him
at the midpoint in the guidelines range and nothing in the
sentencing transcript indicates that the district court would
have imposed a lesser sentence if it knew that the guidelines
were not mandatory. See Martinez-Lugo, 2005 WL 1331282 at *2-*3.
AFFIRMED.