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. 04-40911
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORIO VILLAFRANCA-CASTRO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-108-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Gregorio Villafranca-Castro appeals his guilty-plea
conviction and sentence for being found in the United States,
without permission, following his conviction of an aggravated
felony and subsequent removal. See 8 U.S.C. § 1326(a), (b).
For the first time on appeal, Villafranca-Castro argues that
the sentencing provisions in 8 U.S.C. § 1326(b) are
unconstitutional. Villafranca-Castro acknowledges that his
argument is foreclosed by Almendarez-Torres v. United States, 523
*
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this opinion should not be published and is not precedent except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. 04-40911
-2-
U.S. 224, 235 (1998), but seeks to preserve the issue for review
in light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
However, 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). This court must follow
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted).
Also for the first time on appeal, Villafranca-Castro,
relying on the possibility that Almendarez-Torres will be
overruled, as well as on Blakely v. Washington, 542 U.S. 296
(2004), argues that the Federal Sentencing Guidelines are
unconstitutional because they permit the enhancement of a
sentence based on a defendant’s prior convictions. The argument
fails because Almendarez-Torres has not been overruled, and the
enhancement of a sentence based on prior convictions does not
violate the Sixth Amendment. United States v. Booker, 125 S. Ct.
738, 756 (2005).
Finally, Villafranca-Castro argues that the district court
erred by sentencing him under the mandatory Sentencing Guidelines
scheme held unconstitutional in Booker. See id. We review for
plain error. See United States v. Martinez-Lugo, 411 F.3d 597,
600 (5th Cir. 2005). Villafranca-Castro has satisfied the first
two prongs of the plain error analysis by showing that the
district court committed error that was plain. See id. The
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error is not a structural one, however, and Villafranca-Castro
has not satisfied the third prong of the plain error analysis by
showing that the error affected his substantial rights. See id.
at 600-01.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.