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. 04-40856
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL GERVACIO-ANGEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-368-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Raul Gervacio-Angel appeals his sentence following his
guilty-plea conviction of attempted illegal reentry, in violation
of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced
him to 46 months of imprisonment, three years of supervised
release, and a $100 special assessment.
For the first time on appeal, Gervacio-Angel argues that,
under United States v. Booker, 125 S. Ct. 738 (2005), this court
must vacate his sentence and remand for resentencing because the
*
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this opinion should not be published and is not precedent except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. 04-40856
-2-
mandatory guideline regime was in place at the time of his
sentencing. An unpreserved challenge to the application of the
formerly mandatory sentencing guidelines is reviewed for plain
error. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733
(5th Cir. 2005), petition for cert. filed (July 25, 2005) (No.
05-5556).
The district court’s application of the guidelines in their
mandatory form constituted error that is “plain” for purposes of
satisfying the first two prongs of the plain error analysis. Id.
Gervacio-Angel also bears the burden of demonstrating “that the
sentencing judge--sentencing under an advisory scheme rather than
a mandatory one--would have reached a significantly different
result.” See United States v. Mares, 402 F.3d 511, 521 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Gervacio-Angel has not made such a showing.
Gervacio-Angel also argues that 8 U.S.C. § 1326(b) is
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466
(2000), 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. As Gervacio-Angel concedes,
this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and Almendarez-Torres was not
overruled by Apprendi. See United States v. Sarmiento-Funes,
374 F.3d 336, 346 (5th Cir. 2004). Accordingly, the judgment of
the district court is AFFIRMED.