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. 04-40940
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ELIAS PERDOMO-CASTRO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-130-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Elias Perdomo-Castro (“Perdomo”) appeals following his
guilty plea to a charge of being present illegally in the United
States after deportation, in violation of 8 U.S.C. § 1326.
Perdomo argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
He correctly acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (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this opinion should not be published and is not precedent except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. 04-40940
-2-
See United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.),
cert. denied, 540 U.S. 935 (2003).
Perdomo argues that the district court committed reversible
error by imposing a sentence pursuant to the mandatory Federal
Sentencing Guidelines system that was held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005). 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 committed error that is plain by
sentencing Perdomo under a mandatory Sentencing Guidelines
scheme. 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). However, Perdomo has not carried his burden of showing
that the district court’s error affected his substantial rights.
See Valenzuela-Quevedo, 407 F.3d at 733-34; Mares, 402 F.3d at
521.
Accordingly, the district court’s judgment is AFFIRMED.