United States v. Cid-Perez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2005

Charles R. Fulbruge III
Clerk
No. 04-40797
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWIN DEL CID-PEREZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-89-1
--------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Edwin Del Cid-Perez appeals following his guilty-plea

conviction and sentence for being an alien unlawfully found in

the United States after deportation subsequent to conviction of

an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b).

Del Cid-Perez argues that the district court erroneously

calculated his criminal history by considering three prior,

uncounseled misdemeanor convictions when assessing his criminal

history points. He asserts that his waiver of the right to

*
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this opinion should not be published and is not precedent except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. 04-40797
-2-

counsel in those cases was invalid because the trial court failed

to inform him of the punishment range that he faced. Del Cid-

Perez has not met his burden of showing that the waiver of

counsel was invalid. See Iowa v. Tovar, 124 S. Ct. 1379, 1390

(2004).

Del Cid-Perez also argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional. He acknowledges that his argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998), but he seeks to preserve his argument for further

review in light of Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). Apprendi did not overrule Almendarez-Torres. See

Apprendi, 530 U.S. at 489-90; United States v. Mancia-Perez, 331

F.3d 464, 470 (5th Cir.), cert. denied, 540 U.S. 935 (2003).

Del Cid-Perez further argues that, if Almendarez-Torres is

overruled and if Blakely v. Washington, 124 S. Ct. 2531 (2004),

applies to the Federal Sentencing Guidelines, his sentence could

not be enhanced based on his prior convictions, unless they were

submitted to a jury or admitted by him. As noted, Almendarez-

Torres has not been overruled, and this court must follow

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Mancia-Perez, 331 F.3d at 470

(internal quotation and citation omitted).

Finally, Del Cid-Perez argues that the district court

committed reversible error by imposing a sentence pursuant to the
 No. 04-40797
-3-

mandatory Federal Sentencing Guideline system that was held

unconstitutional in United States v. Booker, 125 S. Ct. 738

(2005). Because Del Cid-Perez did not raise this objection in

the district court, our review is for plain error. See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005).

The district court committed error that is plain by

sentencing Del Cid-Perez under a mandatory Sentencing Guidelines

scheme. See id.; United States v. Mares, 402 F.3d 511, 520-21

(5th Cir. 2005), petition for cert. filed (U.S. Mar. 31, 2005)

(No. 04-9517). However, Del Cid-Perez has not carried his burden

of showing that the district court’s error affected his

substantial rights. See Valenzuela-Quevedo, 407 F.3d at 733-34;

Mares, 402 F.3d at 521.

The district court’s judgment is AFFIRMED.