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. 04-40398
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTEO RODRIGUEZ-TORREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-908-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Timoteo Rodriguez-Torrez appeals his guilty-plea conviction
and sentence for being found in the United States, without
permission, following his conviction of an aggravated felony and
subsequent deportation. See 8 U.S.C. § 1326(a), (b).
For the first time on appeal, Rodriguez-Torrez argues that
the sentencing provisions in 8 U.S.C. § 1326(b) are
unconstitutional. Rodriguez-Torrez acknowledges that his
argument is foreclosed by Almendarez-Torres v. United States, 523
*
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this opinion should not be published and is not precedent except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. 04-40398
-2-
U.S. 224, 235 (1998), but seeks to preserve the issue for review
in light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
However, Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000). This court must follow
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted).
Also for the first time on appeal, Rodriguez-Torrez, relying
on the possibility that Almendarez-Torres will be overruled, as
well as on Blakely v. Washington, 542 U.S. 296 (2004), argues
that the Federal Sentencing Guidelines are unconstitutional
because they permit the enhancement of a sentence based on a
defendant’s prior convictions. The argument fails because
Almendarez-Torres has not been overruled and the enhancement of a
sentence based on prior convictions does not violate the Sixth
Amendment. United States v. Booker, 125 S. Ct. 738, 756 (2005).
Finally, Rodriguez-Torrez argues that the district court
erred by sentencing him under the mandatory Sentencing Guidelines
scheme held unconstitutional in Booker. We review for plain
error. See United States v. Martinez-Lugo, 411 F.3d 597, 600
(5th Cir. 2005). Rodriguez-Torrez has satisfied the first two
prongs of the plain error analysis by showing that the district
court committed error that was plain. See id. The error is not
a structural one, however, and Rodriguez-Torrez has not satisfied
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the third prong of the plain error analysis by showing that the
error affected his substantial rights. See id. at 600-01.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.