United States v. Sanchez-Vivar

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. 04-40897
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

SANTIAGO SANCHEZ-VIVAR,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-218-ALL
--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Santiago Sanchez-Vivar (Sanchez), appeals the 41-month

sentence imposed after he pleaded guilty to one count of illegal

reentry into the United States. See 8 U.S.C. § 1326.

Sanchez contends that 8 U.S.C. § 1326(b) is unconstitutional

and that this court should vacate his sentence and remand his

case for resentencing to no more than two years in prison under

8 U.S.C. § 1326(a). As he concedes, this contention is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998).

*
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this opinion should not be published and is not precedent except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. 04-40897
-2-

Sanchez also contends that he is entitled to resentencing

because the district court sentenced him under a mandatory

application of the federal sentencing guidelines contrary to the

rule of United States v. Booker, 125 S. Ct. 738, 756-57, 769

(2005). We review for plain error. See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005),

petition for cert. filed (July 25, 2005) (No. 05-5556). Although

there was an error, Sanchez has failed to a demonstrate a

sufficient probability “that the district judge would have

imposed a different sentence” under advisory guidelines. Id. at

733; United States v. Mares, 402 F.3d 511, 502, 521-22 (5th Cir.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

Sanchez thus fails to show that the error affected his

substantial rights as he must do to meet the plain-error

standard. See Mares, 402 F.3d at 521-22.

The judgment of the district court is AFFIRMED.