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. 04-40691
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO RAMOS-LUCIO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-103-ALL
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Pedro Ramos-Lucio appeals his sentence imposed following his
guilty plea to illegal reentry. He was sentenced to 18 months of
imprisonment and one year of supervised release. He argues that,
in light of United States v. Booker, 125 S. Ct. 738 (2005), his
sentence is invalid because the district court applied the
Sentencing Guidelines as if they were mandatory. We review for
plain error. United States v. Mares, 402 F.3d 511, 513, 520-22
(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No.
*
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this opinion should not be published and is not precedent except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. 04-40691
-2-
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).
Ramos-Lucio is unable to establish plain error with regard
to his Booker claim because he cannot establish that being
sentenced under a mandatory Guidelines scheme affected his
substantial rights. The record does not indicate that the
district court “would have reached a significantly different
result” under a sentencing scheme in which the Guidelines were
advisory only. See Mares, 402 F.3d at 520-22;
Valenzuela-Quevedo, 407 F.3d at 733-34.
Ramos-Lucio also asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(a) and (b) are
unconstitutional. He acknowledges that his argument is
foreclosed, but he seeks to preserve the issue for possible
Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). This issue is foreclosed. See Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000).
Accordingly, the judgment of the district court is AFFIRMED.