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. 04-40791
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMILIO MEDINA-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-167-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Emilio Medina-Rodriguez (Medina) pleaded guilty to illegal
reentry after deportation and was sentenced to 24 months of
imprisonment, three years of supervised release, and a $100
special assessment.
Medina argues for the first time on appeal that, in light of
the Supreme Court’s decision in United States v. Booker, 125 S.
Ct. 738 (2005), his sentence should be vacated and his case
should be remanded for resentencing because the district court
*
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this opinion should not be published and is not precedent except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. 04-40791
-2-
pronounced sentence under a regime in which the Federal
Sentencing Guidelines were considered mandatory. He contends
that he can show plain error because the district court’s error
was structural and, in the alternative, because the error should
be presumed to have affected his substantial rights. However,
these arguments are foreclosed. See United States v. Martinez-
Lugo, 411 F.3d 597, 601 (5th Cir. 2005); United States v.
Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), petition for
cert. filed (July 11, 2005) (No. 05-5297).
Medina also argues that there is a reasonable probability
that the district court would have imposed a lower sentence if
application of the Sentencing Guidelines had not been mandatory.
In support of this argument, he notes the fact that the district
court sentenced him at the low end of the guideline range and the
fact that the district court could consider his strong family
ties in the United States if the court were not required to apply
the guidelines.
The district court’s imposition of Medina’s sentence
pursuant to a mandatory application of the Sentencing Guidelines
constituted an error that was plain. See Martinez-Lugo, 411 F.3d
at 600. However, Medina’s sentence at the low end of the
guideline range does not alone indicate that the district court
would have sentenced him 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. 04-40791
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(No. 05-5535). Furthermore, nothing in the sentencing transcript
indicates that the district court would sentence Medina
differently on the basis of family ties if application of the
Guidelines were not mandatory. Accordingly, Medina has failed to
show that the district court’s plain error affected his
substantial rights. See Martinez-Lugo, 411 F.3d at 600-01.
Medina also argues for the first time on appeal that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional on their face and as applied in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Medina acknowledges
that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review. As Medina concedes, this issue is
foreclosed. See Apprendi, 530 U.S. at 489-90; United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.