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. 04-40919
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL ALEJO-AGRAMON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-190-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Manuel Alejo-Agramon (Alejo-Agramon) appeals his
guilty-plea conviction and sentence for illegal reentry following
deportation in violation of 8 U.S.C. § 1326.
For the first time on appeal, Alejo-Agramon contends that
the district court plainly erred by characterizing his state
felony conviction for simple possession of marijuana as an
“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C) and
8 U.S.C. § 1101(a)(43)(B), when that same offense was punishable
only as a misdemeanor under federal law. This issue, however, is
*
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this opinion should not be published and is not precedent except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.
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foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697, 706-
11 (5th Cir. 2002), and United States v. Hinojosa-Lopez, 130 F.3d
691, 694 (5th Cir. 1997).
Alejo-Agramon also contends, for the first time on appeal,
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 he concedes, this argument is
foreclosed. See Almendarez-Torres v. United States, 523 U.S.
224, 247 (1998); United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000).
Finally, Alejo-Agramon contends that the district court
committed reversible plain error when it sentenced him pursuant
to the mandatory United States Sentencing Guidelines system held
unconstitutional in United States v. Booker, 125 S. Ct. 738
(2005). He argues that the error was plain, structural, and
presumptively prejudicial. We review for plain error. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.
2005), petition for cert. filed (July 25, 2005)(No. 05-5556).
The district court erred when it sentenced Alejo-Agramon
pursuant to the mandatory Guidelines system. See id. at 733.
However, the error was not structural or presumptively
prejudicial. See United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir. 2005); United States v. Malveaux, 411 F.3d
558, 560 n.9 (5th Cir. 2005), petition for cert. filed (July 11,
2005) (No. 05-5297). Further, Alejo-Agramon has failed to point
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to anything in the record indicating that the district court
would have reached a different conclusion had it known that the
Sentencing Guidelines were advisory. See United States v. Mares,
402 F.3d 511, 521-22 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517). Although the district court
sentenced Alejo-Agramon at the lowest end of the guideline range,
it found no reason to depart from that range. See United States
v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir. 2005), petition
for cert. filed (July 26, 2005) (No. 05-5535). Therefore, Alejo-
Agramon has not demonstrated that his substantial rights were
affected, and he has failed to establish plain error. See Mares,
402 F.3d at 522.
AFFIRMED.