United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-50904
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDVIN AROLDO JUAREZ-CAMPOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-47-1-AML
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Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Edvin Aroldo Juarez-Campos appeals the sentence imposed
following his guilty plea conviction for illegal reentry into
the United States following deportation. Juarez-Campos was
sentenced to a term of imprisonment of 46 months to be followed by
three years of supervised release.
Juarez-Campos argues for the first time on appeal that, in
light of United States v. Booker, 125 S. Ct. 738 (2005), the
district court plainly erred in sentencing him under a mandatory
*
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this opinion should not be published and is not precedent except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.
guidelines system based upon facts that were not admitted by him or
found by a jury. He contends that mitigating circumstances brought
to the district court’s attention at sentencing would have led to
a lesser sentence if the district court had sentenced him under an
advisory guideline scheme.
Juarez-Campos’s claim that the district court plainly erred by
enhancing his sentence based upon facts not determined by a jury
and which he did not admit is unavailing because he failed to show
that “the sentencing judge--sentencing under an advisory scheme
rather then a mandatory one--would have reached a significantly
different result.” See United States v. Mares, 402 F.3d 511, 520-
522 (5th Cir.), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517); see also United States v. Bringier, 405 F.3d 310,
317 (5th Cir. 2005). His argument that the district court’s
application of the guidelines as mandatory was error also fails
because he did not show that the district court would have imposed
a different sentence had the guidelines been advisory only. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733-34 (5th Cir.
2005).
Juarez-Campos concedes that the issue whether his sentence
under 8 U.S.C. § 1326(b)(2) was rendered unconstitutional by
Apprendi v. New Jersey, 530 U.S. 466 (2000), and subsequent Supreme
Court precedent is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), and he raises it solely to
preserve it for further review by the Supreme Court. Apprendi did
2
not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). We
therefore must follow Almendarez-Torres “unless and until the
Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d
at 984 (internal quotations and citation omitted).
AFFIRMED.
3