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. 04-40723
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FILIBERTO ENRIQUEZ-CASTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-944-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Filiberto Enriquez-Castillo (Enriquez) appeals his
guilty-plea conviction and sentence for illegal reentry into the
United States following deportation subsequent to a felony
conviction for a crime of violence. For the first time on
appeal, Enriquez argues that 8 U.S.C. § 1326(b) is
unconstitutional on its face and as applied 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
*
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this opinion should not be published and is not precedent except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. 04-40723
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reasonable doubt. As Enriquez acknowledges, his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), which was not overruled by Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Enriquez argues that under Blakely v. Washington, 124 S. Ct.
2531 (2004), the enhancement of his sentence based on his prior
conviction was error. However, United States v. Booker, 125
S. Ct. 738 (2005), reaffirmed the holding in Apprendi that prior
convictions are excluded from the facts that must be admitted or
submitted to the jury. See Booker, 125 S. Ct. at 756. Thus,
Enriquez’s sentence was not affected by a Sixth Amendment
violation. See Booker, 125 S. Ct. at 750, 769.
Enriquez argues that because his sentence was imposed
pursuant to an unconstitutional mandatory guidelines system, it
is unconstitutional and should be vacated. See Booker, 125
S. Ct. at 750, 768-69; see also United States v. Mares, 402 F.3d
511, 518-20 & n.9 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517). We review for plain error. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
The error was plain, meeting the first two prongs of the
plain-error standard. See United States v. Martinez-Lugo, 411
F.3d 597, 600 (5th Cir. 2005). However, Enriquez has not shown
that the error affected his substantial rights. Although the
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sentence was at the low end of the guideline range, a sentence at
the low end of the guideline range does not alone indicate that
the district court would have sentenced Enriquez differently
under an advisory sentencing scheme. See United States v.
Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005), petition for
cert. filed (July 26, 2005) (No. 05-5535). Furthermore, the
error was not structural and prejudice is not otherwise presumed.
See Martinez-Lugo, 411 F.3d at 601; United States v. Malveaux,
411 F.3d 558, 561 n.9 (5th Cir. 2005), petition for cert. filed,
(July 11, 2005) (No. 05-5297). Nothing in the sentencing
transcript indicates that the district court would have imposed a
lesser sentence had it known that the guidelines were not
mandatory. See Martinez-Lugo, 411 F.3d at 601.
AFFIRMED.