United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-40688
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR MARIO DE LA ROSA-MASCORRO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-189-ALL
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Hector Mario De La Rosa-Mascorro appeals his conviction and
sentence for attempted reentry of an alien after having been
deported. He argues that (1) the district court erred by
increasing his base offense level 16 points under U.S.S.G.
§ 2L1.2(b)(1)(A)(vii) because his prior conviction for
transporting illegal aliens was not an “alien smuggling offense”;
(2) the provisions of 8 U.S.C. § 1326(b) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) his
*
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this opinion should not be published and is not precedent except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. 04-40688
-2-
sentence is unconstitutional under United States v. Booker, 125
S. Ct. 738 (2005), because it was imposed pursuant to a mandatory
guidelines scheme.
De La Rosa’s arguments that his prior conviction for
transporting illegal aliens was not an alien-smuggling offense
and that the provisions of 8 U.S.C. § 1326(b) are
unconstitutional are foreclosed by United States v. Solis-
Campozano, 312 F.3d 164 (5th Cir. 2002), and Almendarez-Torres v.
United States, 523 U.S. 224 (1998).
De La Rosa first 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,
___ F.3d ___, 2005 WL 1331282 *2 (5th Cir. June 7, 2005), and
determined that an unpreserved error challenging the mandatory
nature of the guidelines is subject to a plain-error analysis.
Because De La Rosa did not raise this issue in the district
court, the remaining argument is subject to a plain-error
analysis. 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).
In order to establish that he is entitled to relief under a
plain-error analysis, De La Rosa must show that an error was
committed, which was plain, and that the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 731-37
No. 04-40688
-3-
(1993). If these factors are established, the decision to
correct the error is within the sound discretion of this court,
which will not be exercised unless the error seriously affects
the fairness, integrity, or public reputation of judicial
proceedings. Id. at 736.
The district court committed error that is plain by
sentencing De La Rosa under a mandatory sentencing guidelines
scheme. Valenzuela-Quevedo, 407 F.3d at 733. To establish that
his substantial rights were affected, De La Rosa bears the burden
of establishing that the sentencing court would have reached a
different result under an advisory scheme. Mares, 402 F.3d at
521. De La Rosa meets his burden. The district court
unequivocally stated that it would impose a lesser sentence if it
were not bound by the guidelines. Accordingly, De La Rosa’s
conviction is AFFIRMED. His sentence is VACATED, and the matter
is REMANDED for resentencing.