United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2005
Charles R. Fulbruge III
Clerk
No. 04-50893
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MISAEL GARCIA-CHAPA
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-137-1
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Before KING, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Misael Garcia-Chapa (“Garcia”) appeals his sentence imposed
following his guilty plea to illegally re-entering the United
States after having been deported, in violation of 8 U.S.C.
§ 1326. The district court sentenced Garcia to 70 months of
imprisonment and three years of supervised release.
Garcia asserts that, under Apprendi v. New Jersey, 530 U.S.
466 (2000) and its progeny, 8 U.S.C. § 1326(b) is
unconstitutional because it permits a sentencing judge to
increase a sentence beyond the statutory maximum based on a
*
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this opinion should not be published and is not precedent except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. 04-50893
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factor that need not be submitted to a jury for proof or admitted
by the defendant. Garcia concedes that this 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. Izaguirre-Flores, 405 F.3d 270,
277-78 (5th Cir. 2005) (citation omitted).
Garcia argues that his sentence was increased under the
Sentencing Guidelines, in violation of the Sixth Amendment, based
on a factor that was neither submitted to a jury for proof beyond
a reasonable doubt nor admitted by Garcia. He also argues that
the district court erred by sentencing him under the pre-Booker
mandatory guideline regime. Because Garcia did not preserve
these arguments in the district court, our review is for plain
error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005), petition for cert. filed (U.S. Mar. 31, 2005) (No.
04-9517). If it is assumed arguendo that the Booker rule is
implicated by the addition of criminal history points based
Garcia’s having committed the instant offense within two years
after having been discharged from a prior prison term, then the
error was “plain.” Id. at 520-21. Moreover, the district
court’s application of the guidelines in their mandatory form
constituted error that is “plain” for purposes of satisfying the
first two prongs of the plain-error analysis. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005). Garcia
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also bears the burden of showing that his “substantial rights”
were violated, such “that the sentencing judge--sentencing under
an advisory scheme rather than a mandatory one--would have
reached a significantly different result.” See Mares, 402 F.3d
at 521; see also United States v. Bringier, 405 F.3d 310, 317-18
n.4 (5th Cir. 2005). Garcia has not made such a showing with
respect to his Sixth Amendment claim or his claim regarding the
mandatory application of the guidelines.
Accordingly, the judgment of the district court is AFFIRMED.