United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 03-41044
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RAMIREZ-GARCIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:02-CR-1404-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Ramirez-Garcia appeals the sentence imposed following
his guilty-plea conviction for illegal reentry after deportation
following a conviction for an aggravated felony, in violation of
8 U.S.C. § 1326. As Ramirez-Garcia concedes, his argument that
the sentencing provisions in 8 U.S.C. § 1326(a) and (b) are
unconstitutional is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See Apprendi v. New Jersey,
530 U.S. 466, 489-90 (2000); United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000).
*
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this opinion should not be published and is not precedent except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. 03-41044
-2-
Ramirez-Garcia argues, for the first time on appeal, that
the district court erred in sentencing him under a mandatory
sentencing guidelines scheme, citing United States v. Booker,
125 S. Ct. 738, 756 (2005). He acknowledges that the argument is
reviewed for plain error but contends that prejudice should be
presumed.
Plain error is the correct standard of review. See United
States v. Malveaux, 411 F.3d 558, 560 (5th Cir. 2005), petition
for cert. filed (July 11, 2005) (No. 05-5297). The district
court committed error that is plain when it sentenced Ramirez-
Garcia under a mandatory sentencing guidelines regime. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556);
United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.
2005). Ramirez-Garcia, however, fails to meet his burden of
showing that the district court’s error affected his substantial
rights. See Valenzeuela-Quevedo, 407 F.3d at 733-34; United
States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517).
The district court’s judgment is AFFIRMED.