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. 04-41068
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO BANEGAS-VALDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-184-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Pedro Banegas-Valdez (Banegas) appeals the 33-month sentence
imposed after he pleaded guilty to one count of illegal reentry
into the United States. See 8 U.S.C. § 1326.
Banegas contends that 8 U.S.C. § 1326(b) is unconstitutional
and that this court should vacate his sentence and remand his
case for resentencing to no more than two years in prison under
8 U.S.C. § 1326(a). As he concedes, this contention is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(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this opinion should not be published and is not precedent except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. 04-41068
-2-
Banegas also contends that he is entitled to resentencing
because the district court sentenced him under a mandatory
application of the federal sentencing guidelines contrary to the
rule of United States v. Booker, 125 S. Ct. 738, 756-57, 769
(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). Although there
was an error, Banegas has failed to demonstrate a sufficient
probability “that the district judge would have imposed a
different sentence” under advisory guidelines. See id. at 733;
United States v. Mares, 402 F.3d 511, 502, 521-22 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Banegas thus fails to show that the error affected his
substantial rights as he must do to meet the plain-error
standard. See Mares, 402 F.3d at 521-22.
The judgment of the district court is AFFIRMED.