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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-996-ALL
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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this opinion should not be published and is not precedent except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
-2-
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
No. 04-40692
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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.