United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-51036
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR SIMON GONZALEZ-SANDOVAL,
also known as Jose Herlindo Zuniga, Jr.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-679-ALL-PRM
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Oscar Simon Gonzalez-Sandoval (“Gonzalez”) appeals following
his guilty-plea to illegally re-entering the United States after
previously being deported, in violation of 8 U.S.C. § 1326.
Gonzalez argues that his sentence violates United States v.
Booker, 125 S. Ct. 738 (2005), because it was based upon facts
that were neither submitted to a jury nor admitted.
Specifically, he contends that the district court increased his
criminal history points by finding that the instant offense was
*
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this opinion should not be published and is not precedent except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. 04-51036
-2-
committed less than two years after his release from custody in a
prior offense. He also argues that his sentence is
unconstitutional because it was imposed pursuant to a mandatory
application of the sentencing guidelines. The Government
concedes that error occurred but argues that Gonzalez cannot meet
his burden under the plain error standard of review.
Because Gonzalez did not raise these issues in the district
court, this court reviews the arguments for plain error. See
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517);
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.
2005). Under this standard, Gonzalez must show 1) an error; 2)
that is clear or obvious; 3) that affected his substantial
rights; and 4) that seriously affected the fairness, integrity or
public reputation of his judicial proceedings. United States v.
Olano, 507 U.S. 725, 732-35 (1993).
Gonzalez fails to show that the district court would likely
have sentenced him differently under the Booker advisory scheme.
At best, it is uncertain from the district court’s remarks at
sentencing that it would have reached a different conclusion.
Because Gonzalez has not demonstrated that his substantial rights
were affected, his arguments fail to survive plain-error review.
See Valenzuela-Quevedo, 407 F.3d at 733-34; Mares, 402 F.3d at
521-22; cf. United States v. Pennell, 409 F.3d 240, 245-46 (5th
Cir. 2005).
No. 04-51036
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Gonzalez also argues that his sentence violated due process
and should have been limited to the statutory maximum of two
years because his indictment did not allege the fact of his prior
conviction. Gonzalez correctly concedes that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), and he raises the issue to preserve it for Supreme Court
review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90; United States v. Mancia-Perez, 331 F.3d 464, 470
(5th Cir.), cert. denied, 540 U.S. 935 (2003). This court must
follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Mancia-Perez, 331 F.3d at 470
(internal quotation marks and citation omitted).
AFFIRMED.