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. 04-40875
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE TORRES-LUCIO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-223-ALL
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Jose Torres-Lucio appeals from his guilty-plea
conviction for illegal reentry following deportation. For the
first time on appeal, Torres-Lucio contends that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). As Torres-Lucio concedes, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
*
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this opinion should not be published and is not precedent except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. 04-40875
-2-
Citing United States v. Booker, 125 S. Ct. 738, 756 (2005),
Torres-Lucio argues, also for the first time on appeal, that the
district court erred in sentencing him under a mandatory
sentencing guidelines scheme. He acknowledges that this argument
is reviewed for plain error. Nevertheless, Torres-Lucio contends
that he does not have to show that the district court’s error
affected his substantial rights because the error is structural
and because prejudice should be presumed.
Plain error is the correct standard of review. See United
States v. Malveaux, 411 F.3d 558, 560 (5th Cir. 2005), petition
for cert. filed (July 11, 2005) (No. 05-5297). The district
court committed error that is plain when it sentenced Torres-
Lucio under a mandatory sentencing guidelines regime. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005),
petition for cert. filed (July 25, 2005) (No. 05-5556); United
States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005).
Torres-Lucio’s arguments that application of the mandatory
guidelines scheme is a “structural” error that is not susceptible
to plain-error analysis or, alternatively, that plain-error
prejudice should be presumed, lack merit. See Martinez-Lugo, 411
F.3d at 601. Torres-Lucio fails to meet his burden of showing
that the district court’s error affected his substantial rights.
See Valenzeuela-Quevedo, 407 F.3d at 733-34; see also United
States v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir. 2005),
petition for cert. filed (July 26, 2005) (No. 05-5535).
AFFIRMED.