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. 04-41562
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO JAVIER LINAN-GONZALEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-84-ALL
--------------------
Before BENAVIDES DENNIS and OWEN, Circuit Judges
PER CURIAM:*
Eduardo Javier Linan-Gonzalez appeals the sentence following
his guilty-plea conviction for illegal reentry after deportation in
violation of 8 U.S.C. § 1326(a) and (b). Linan-Gonzalez contends
that the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b) are unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). He acknowledges that this argument is
foreclosed, but he seeks to preserve the issue for possible Supreme
Court review. See Almendarez-Torres v. United States, 523 U.S.
*
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this opinion should not be published and is not precedent except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. 04-41562
-2-
224, 247 (1998); United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000).
Linan-Gonzalez also argues that his sentence was unreasonable
because the district court failed to consider whether, under 18
U.S.C. § 3553(a), his unique mental condition in the form of severe
depression warranted a sentence below the applicable guidelines
range. While the district court found that he did not suffer from
“diminished capacity,” the defendant argues that consideration of
a downward departure was warranted based on his mental and
emotional condition. Under the Sentencing Guidelines, mental and
emotional conditions are not ordinarily relevant to sentencing.
U.S.S.G. § 5H1.3. The defendant argues that, after United States
v. Booker, 125 S. Ct. 738 (2005), this provision as to mental
conditions is not mandatory and his depression warranted a lesser
sentence under 18 U.S.C. § 3553(a).
The defendant’s argument, now based upon Booker, is raised for
the first time on appeal. Accordingly, our review is for plain
error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-
33 (5th Cir. 2005).
Although Linan-Gonzalez does not explicitly argue that his
sentence was erroneous because it was imposed under a mandatory
guidelines system, it is the unstated premise for his argument
that, based upon Booker, the district court should have taken his
mental condition into consideration and given him a sentence below
the applicable guidelines range. After Booker, the mandatory
No. 04-41562
-3-
application of the guidelines is an error that is plain.
Valenzuela-Quevedo, 407 F.3d at 733.
Linan-Gonzalez has not shown, however, that his substantial
rights were affected by the error. Id. at 733-34. He stops short
of asserting that, if the district court has considered his mental
condition under 18 U.S.C. § 3553(a), it would have imposed a lesser
sentence. Moreover, even under an advisory guidelines scheme, the
district court could have considered the Sentencing Commission’s
policy statement that mental and emotional conditions are not
ordinarily relevant in determining whether a departure is
warranted. See United States v. Mares, 402 F.3d 511, 518-19 (5th
Cir. 2005); U.S.S.G. § 5H1.3, p.s.; 18 U.S.C. § 3553(a)(5).
Finally, the record indicates that the district court did not
believe that Linan-Gonzalez suffered from diminished capacity,
instead concluding that his problem was no different from other
people who miss their families in the United States. As Linan-
Gonzalez has not carried his burden of showing that he would have
received a different sentence if the district court had sentenced
him under an advisory guidelines scheme, his sentence is AFFIRMED.