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. 04-40889
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL HERNANDEZ-CARTAGENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-228-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:
Manuel Hernandez-Cartagena pleaded guilty to an indictment
charging him with being present illegally in the United States
following deportation. Because Hernandez was convicted prior to
deportation of attempted sexual abuse of a minor, he was
sentenced, under 8 U.S.C. § 1326(b), to a 50-month term of
imprisonment and to a three-year period of supervised release.
Hernandez contends that his sentence should be vacated
because it was imposed pursuant to an unconstitutional mandatory
guidelines system, contrary to United States v. Booker, 125
S. Ct. 738, 768–69 (2005), a so-called Fanfan error. See United
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States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005).
Hernandez concedes that this court’s review is for plain error.
See id.; United States v. Mares, 402 F.3d 511, 520–21 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Under the third-prong of the plain-error analysis, Hernandez must
show that the error affected his substantial rights in that it
“affected the outcome of the district court proceedings.”
Martinez-Lugo, 411 F.3d at 600 (quotation marks omitted).
Hernandez does not contend that the error affected the outcome of
the proceedings and there is nothing in the record to suggest
otherwise. See United States v. Inman, 411 F.3d 591, 595 (5th
Cir. 2005); United States v. Infante, 404 F.3d 376, 395 (5th Cir.
2005).
Hernandez contends instead that prejudice should be presumed
or that a showing of prejudice should not be required because the
error was “structural and insusceptible of harmless error
analysis.” An identical argument was rejected in Martinez-Lugo.
See Martinez-Lugo, 411 F.3d at 601; see also United States v.
Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005), petition for
cert. filed (July 11, 2005) (No. 05-5297). Hernandez has not
shown that the district court plainly erred by sentencing him
pursuant to a mandatory guideline scheme. See Martinez-Lugo, 411
F.3d at 601.
Hernandez contends that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(2) are unconstitutional in light
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of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and that he
should be resentenced in light of Blakely v. Washington, 124
S. Ct. 2531 (2004). Hernandez recognizes that relief is
foreclosed; he raises the issue to preserve it for further
review. Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000); see also Shepard v. United States, 125
S. Ct. 1254, 1262 (2005). This court must follow Almendarez-
Torres “unless and until the Supreme Court itself determines to
overrule it.” Dabeit, 231 F.3d at 984 (quotation marks omitted).
The judgment is AFFIRMED.