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. 04-40888
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO CESAR REYNA-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-2-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Julio Cesar Reyna-Lopez (Reyna) pleaded guilty to possession
with intent to distribute more than 50 kilograms (specifically,
93.4 kilograms) of marijuana, and he was sentenced to 30 months
of imprisonment, three years of supervised release, and a $100
special assessment that was ordered remitted on motion of the
Government.
Reyna argues for the first time on appeal that, in light of
the Supreme Court’s decision in United States v. Booker, 125 S.
*
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this opinion should not be published and is not precedent except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. 04-40888
-2-
Ct. 738 (2005), his sentence should be vacated and his case
should be remanded for resentencing because the district court
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).
Reyna 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 mitigating circumstances existed.
The district court’s imposition of Reyna’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, Reyna’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. 04-40888
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(No. 05-5535). Furthermore, nothing in the sentencing transcript
indicates that the district court would sentence Reyna
differently if application of the Guidelines were not mandatory.
Accordingly, Reyna has failed to show that the district court’s
plain error affected his substantial rights. See Martinez-Lugo,
411 F.3d at 600-01.
Reyna also argues for the first time on appeal that the
statute of conviction, 21 U.S.C. § 841, is unconstitutional under
Apprendi v. New Jersey, 530 U.S. 466 (2000). Reyna concedes that
his argument is foreclosed by our opinion in United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). He raises the
issue only to preserve it for further review. Accordingly,
Reyna’s argument is foreclosed.
The judgment of the district court is AFFIRMED. The
Government’s motion for summary affirmance in lieu of filing an
appellee’s brief is GRANTED.