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. 04-40533
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRISTOBAL RAFAEL-QUERIAPA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-856-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Cristobal Rafael-Queriapa appeals his conviction and
sentence for illegal reentry of an alien after having been
deported. He argues that the provisions of 8 U.S.C. § 1326(b)
are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000) and that his indictment should have reflected a prior
conviction. He also argues that his sentence is unconstitutional
under United States v. Booker, 125 S. Ct. 738 (2005), because it
was imposed pursuant to a mandatory guidelines scheme.
*
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this opinion should not be published and is not precedent except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. 04-40533
-2-
Rafael’s arguments that the provisions of 8 U.S.C. § 1326(b)
are unconstitutional and that the prior conviction should have
been charged in his indictment are foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 247 (1998).
Rafael challenges the Booker error as structural in nature
and argues that prejudice should be presumed. This court
rejected that argument in United States v. Martinez-Lugo, 411
F.3d 597, 601 (5th Cir. 2005). Our review is for plain error.
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517); United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005),
petition for cert. filed (July 25, 2005) (No. 05-5556).
The district court committed error that is plain by
sentencing Rafael under a mandatory sentencing guidelines scheme.
Valenzuela-Quevedo, 407 F.3d at 733. However, Rafael fails to
carry his burden of showing that this error affected his
substantial rights. Id. at 733-34. The district court made no
comments indicating that it would have imposed a lesser sentence
in the absence of mandatory guidelines. Accordingly, the
judgment of the district court is AFFIRMED.