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. 04-41071
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANDRES ROMERO-DERAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-174-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Andres Romero-Deras (“Romero”) appeals his conviction
and sentence for illegal reentry after deportation.
Romero argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000). Romero’s argument concerning the
constitutionality of 8 U.S.C. § 1326(b) is, as he concedes,
foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224
*
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this opinion should not be published and is not precedent except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. 04-41071
-2-
(1998); United States v. Izaguirre-Flores, 405 F.3d 270, 277-78
(5th Cir. 2005), petition for cert. filed (July 22, 2005)
(No. 05-5469).
Romero also contends that his sentence is improper under
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005). He concedes that
the plain-error standard of review applies. Romero has not shown
that the district court would have imposed a different sentence
under an advisory sentencing scheme. Thus, Romero has not shown
plain error in connection with his sentence. See United States
v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir. 2005).
The judgment of the district court is AFFIRMED.