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. 04-41069
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IRINEO HERNANDEZ-HERNANDEZ,
also known as Efren Hernandez-Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-230-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Irineo Hernandez-Hernandez (Hernandez) appeals the sentence
imposed after he pleaded guilty to illegally reentering the
United States in violation of 8 U.S.C. § 1326(a), (b)(1) and
(b)(2). Because Hernandez had been deported subsequent to an
aggravated felony conviction, his offense level was enhanced by
16 points under the Sentencing Guidelines.
As Hernandez concedes, his contention that the treatment of
prior convictions as sentencing factors rather than offense
*
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this opinion should not be published and is not precedent except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. 04-41069
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elements under 18 U.S.C. § 1326(b)(1), (b)(2) is unconstitutional
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). He raises the arguments solely to preserve them for
further review.
Hernandez also argues that his sentence should be vacated
pursuant to United States v. Booker, 125 S. Ct. 738 (2005),
because it was imposed under a mandatory Sentencing Guidelines
regime. As Hernandez did not raise this argument in the district
court, we review for plain error. See United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar.
31, 2005) (No. 04-9517).
Sentencing a defendant pursuant to a mandatory Guidelines
scheme absent a Sixth Amendment violation, as occurred in this
case, constitutes error that is plain, i.e., obvious. See United
States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005).
However, Hernandez cannot demonstrate that the error affected his
substantial rights as required under plain error’s third prong.
We reject his argument that such error is structural or
presumptively prejudicial for purposes of the third plain error
step. See id. at 601. Rather, we employ the same analysis set
forth in Mares. See id.
Contrary to Hernandez’s contentions, there is no indication
in the record that the district court would have imposed a lower
sentence under an advisory system. See id. The fact that the
district court sentenced him to the lowest term within the
No. 04-41069
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Guideline range, without more, is “no indication that the judge
would have reached a different conclusion under an advisory
scheme.” United States v. Bringier, 405 F.3d 310, 317 & n.4 (5th
Cir. 2005), petition for cert. filed (July 26, 2005) (No.
05-5535). In addition, the district court gave no indication
that, absent the mandatory nature of the Guidelines, it would
have considered Hernandez’s cultural assimilation a basis for
imposing a lower sentence. To the contrary, the district court
stated that a serious sentence was warranted given Hernandez’s
history of violent crime, his unlawful reentry, and his
recidivism.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.