United States v. Gonzalez-Lopez

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. 04-40384
c/w No. 04-40386
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO ALBERTO GONZALEZ-LOPEZ,

Defendant-Appellant.

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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:00-CR-272-1
USDC No. 5:03-CR-1553-ALL
--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Mario Alberto Gonzales-Lopez (Gonzalez), appeals the 57-

month sentence imposed after he pleaded guilty to one count of

illegal reentry into the United States. See 8 U.S.C. § 1326.

Gonzales abandons his appeal from the revocation of supervised

release that arose from the illegal reentry. See United States

v. Willingham, 310 F.3d 367, 371 (5th Cir. 2002) (issues not

briefed on appeal are abandoned).

*
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this opinion should not be published and is not precedent except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. 04-40384
c/w No. 04-40386
-2-

Gonzalez contends that 8 U.S.C. § 1326(b) is

unconstitutional and that this court should vacate his sentence

and remand his case for resentencing to no more than two years in

prison under § 1326(a). As he concedes, this contention is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998).

Gonzalez also contends that he is entitled to resentencing

because the district court sentenced him under a mandatory

application of the federal sentencing guidelines prohibited by

United States v. Booker, 125 S. Ct. 738, 756-57, 769 (2005). We

review for plain error. See United States v. Valenzuela-Quevedo,

407 F.3d 728, 732 (5th Cir. 2005), petition for cert. filed (July

25, 2005) (No. 05-5556). Although there was an error under

Booker, Gonzalez fails to “demonstrate a probability sufficient

to undermine confidence in the outcome . . . that the district

judge would have imposed a different sentence” under advisory

guidelines. Valenzuela-Quevedo, 407 F.3d at 733 (internal

quotation marks and citation omitted). Gonzalez thus fails to

show that the error affected his substantial rights as he must do

to meet the plain-error standard. See id.; United States v.

Mares, 402 F.3d 511, 502, 521-22 (5th Cir. 2005), petition for

cert. filed (Mar. 31, 2005) (No. 04-9517).

The judgment of the district court is AFFIRMED.