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. 04-40968
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER GONZALEZ-HERNANDEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-304-1
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Javier Gonzalez-Hernandez appeals from his conviction of
illegal reentry following deportation.
Gonzalez contends that the “felony” and “aggravated felony”
sentencing-enhancement provisions of 8 U.S.C. § 1326(b) are
facially unconstitutional because Almendarez-Torres v. United
States, 523 U.S. 224 (1998), has been undercut by later Supreme
Court opinions. Gonzalez concedes that his argument is
foreclosed by existing precedent, but he raises it to preserve it
*
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this opinion should not be published and is not precedent except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. 04-40968
-2-
for further review. Gonzalez contends that Blakely v.
Washington, 124 S. Ct. 2531 (2004), is applicable to his sentence
if Almendarez-Torres is overruled. Gonzalez’s Almendarez-Torres
contention is foreclosed. See United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000).
Gonzalez contends that his sentencing under the formerly
mandatory Sentencing Guidelines was plainly erroneous and
reversible pursuant to United States v. Booker, 125 S. Ct. 738
(2005). Gonzalez cannot demonstrate reversible plain error
because he cannot show that the district court’s error affected
his sentence. 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).
AFFIRMED.