United States v. Rivas-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. 04-40692
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ARMANDO RIVAS-LOPEZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-996-ALL
--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Carlos Armando Rivas-Lopez appeals from his guilty-plea

conviction for illegal reentry into the United States following

deportation after an aggravated-felony conviction. For the first

time on appeal, Rivas-Lopez argues that 8 U.S.C. § 1326(b) is

unconstitutional on its face and as applied in his case because

it does not require the fact of a prior felony or aggravated

felony conviction to be charged in the indictment and proved

beyond a reasonable doubt.

*
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this opinion should not be published and is not precedent except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. 04-40692
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Rivas-Lopez acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but

asserts that the decision has been cast into doubt by Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his

argument for further review. 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).

Rivas-Lopez also argues that, if Almendarez-Torres is

overruled and if Blakely v. Washington, 542 U.S. 296 (2004),

applies to the federal sentencing guidelines, the district court

violated his right to a trial by jury by enhancing his sentence

based on his prior convictions, which were not submitted to a

jury or admitted by Rivas-Lopez. Almendarez-Torres has not been

overruled.

Also for the first time on appeal, Rivas-Lopez argues that

his sentence should be vacated and the case remanded for

resentencing in light of United States v. Booker, 125 S. Ct. 738

(2005). He does not allege that a Sixth Amendment violation

occurred but, instead, asserts that the district court would have

imposed a lesser sentence under an advisory sentencing scheme.

Rivas-Lopez’s claim fails to meet the plain-error standard

because he has not shown that the error affected his substantial
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rights. See United States v. Valenzuela-Quevedo, 407 F.3d 728,

733-34 (5th Cir. 2005), petition for cert. filed (July 25, 2005)

(No. 05-5556).

AFFIRMED.