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. 04-40799
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE TREVINO-SAENZ,
also known as Victor Manuel Martinez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-186-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Trevino-Saenz appeals his sentence following his
guilty-plea conviction of one charge of illegal reentry into the
United States. Trevino-Saenz argues that the district court
erred in sentencing him under a mandatory sentencing guidelines
scheme. He acknowledges that this claim is reviewed for plain
error only.
The district court committed error that is plain by
sentencing Trevino-Saenz under a mandatory sentencing guidelines
*
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this opinion should not be published and is not precedent except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. 04-40799
-2-
regime. See United States v. Mares, 402 F.3d 511, 520-21
(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517); United States v. Valenzuela-Quevedo, 407 F.3d 728,
732 (5th Cir. 2005), petition for cert. filed (July 25, 2005)
(No. 05-5556). Nevertheless, Trevino-Saenz 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. Trevino-Saenz’s contention that this
error is structural and gives rise to a presumption of prejudice
is unavailing. See United States v. Malveaux, 411 F.3d 558, 560
n.9 (5th Cir. 2005), petition for cert. filed (July 11, 2005)
(No. 05-5297); see also United States v. Martinez-Lugo, 411 F.3d
597, 600-01 (5th Cir. 2005). Trevino-Saenz has not shown that he
should receive relief on this claim.
Trevino-Saenz’s argument that the sentencing provisions in 8
U.S.C. § 1326(b) are unconstitutional is, as he concedes,
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
247 (1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-490
(2000).
Trevino-Saenz has shown no reversible error in the district
court’s judgment. Consequently, that judgment is AFFIRMED.