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. 04-40944
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISRAEL RANGEL-ESPINOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-945-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Israel Rangel-Espinoza (Rangel-Espinoza) 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, Rangel-Espinoza contends 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 Rangel-Espinoza concedes, this
argument is foreclosed. See Almendarez-Torres v. United States,
*
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this opinion should not be published and is not precedent except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. 04-40944
-2-
523 U.S. 224, 247 (1998); United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000).
Rangel-Espinoza also contends, for the first time on appeal,
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 Rangel-Espinoza
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, Rangel-Espinoza has failed to
point 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 Rangel-Espinoza at the lowest end of the guideline
range, it found no reason to depart from that range. See United
No. 04-40944
-3-
States v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir. 2005),
petition for cert. filed (July 26, 2005) (No. 05-5535).
Therefore, Rangel-Espinoza 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.