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. 04-40169
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RODRIGUEZ-MENDEZ,
also known as Gregorio Hernandez-Martinez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-824-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Rodriguez-Mendez appeals his sentence imposed following
his guilty plea conviction for illegal reentry into the United
States following deportation. Rodriguez argues for the first
time on appeal and pursuant to Apprendi v. New Jersey, 530 U.S.
466 (2000) that the sentencing provisions of 8 U.S.C. § 1326(b)
are unconstitutional. He concedes that this issue is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
*
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this opinion should not be published and is not precedent except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. 04-40169
-2-
he raises it solely to preserve its further review by the Supreme
Court.
Rodriguez also argues that he was sentenced under the
unconstitutional mandatory guidelines system and that the error
constitutes plain error in light of Booker. Rodriguez further
argues that he should not be required to show a reasonable
probability of prejudice because a Booker error is structural and
insusceptible of harmless error analysis. Rodriguez contends
that even if the error was not structural, it affected his
substantial rights and the fairness and integrity of the judicial
proceeding.
We review for plain error. Sentencing a defendant pursuant
to a mandatory guidelines scheme, without an accompanying Sixth
Amendment violation, constitutes “Fanfan” error. See United
States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).
The court has rejected the argument that Fanfan error is
structural and presumptively prejudicial error, holding that it
is instead subject to the same plain error analysis set forth in
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005)(No. 04-9517). See
United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.
2005).
Rodriguez has met the first two prongs of the plain error
test because Fanfan error is “error” that is “plain.” See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.
No. 04-40169
-3-
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
In order to meet the third prong of the analysis and show that
the error affected his substantial rights, Rodriguez bears the
burden of showing “that the sentencing judge--sentencing under an
advisory scheme rather than a mandatory one--would have reached a
significantly different result.” Mares, 402 F.3d at 520-21.
Rodriguez has failed to make that showing and, thus, has failed
to show plain error. See United Stares v. Bringier, 405 F.3d
310, 317 n.4 (5th Cir. 2005), petition for cert. filed (July 26,
2005) (No. 05-5535).
AFFIRMED.