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. 04-41073
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINO ROMAN MARTINEZ, also known as Jose Vidas,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-257-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Lino Roman Martinez (Martinez) appeals from his guilty-plea
conviction for being an alien unlawfully found in the United
States after deportation and after an aggravated felony
conviction, in violation of 8 U.S.C. § 1326. Martinez argues
that the sentencing provisions of 8 U.S.C. § 1326(b) are
unconstitutional and that the district court erred under United
States v. Booker, 125 S. Ct. 738 (2005), when it sentenced him
under mandatory Guidelines.
*
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this opinion should not be published and is not precedent except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. 04-41073
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As Martinez concedes, his argument that the sentencing
provisions in 8 U.S.C. § 1326(b) are unconstitutional because
they do not require the fact of a prior conviction to be treated
as an offense element and proved beyond a reasonable doubt was
rejected in Almendarez-Torres v. United States, 523 U.S. 224,
234-35, 239-47 (1998). This court must follow the precedent
set in Almendarez-Torres unless the Supreme Court overrules it.
See United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001).
Accordingly, Martinez’s argument is foreclosed.
As Martinez argues, the district court erred by imposing a
sentence pursuant to a mandatory application of the Guidelines.
Booker, 125 S. Ct. at 767-68; United States v. Martinez-Lugo,
411 F.3d 597, 600-01 (5th Cir. 2005). However, in Martinez-Lugo,
411 F.3d at 601, this court rejected the argument urged by
Martinez, that the error is structural and presumptively
prejudicial. Instead, Martinez-Lugo held that this error is
subject to the plain error analysis set forth in United States v.
Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517). Martinez-Lugo, 411 F.3d at 601.
Thus, because Martinez raises this issue for the first time on
appeal, his argument is reviewable only for plain error.
Because Martinez was sentenced under a mandatory Guidelines
regime, he has met the first two prongs of the plain error test
because Fanfan error is “error” that is “plain.” See
Martinez-Lugo, 411 F.3d at 600. Martinez has failed to point to
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statements by the sentencing judge that demonstrate a likelihood
that the judge, sentencing under an advisory rather than a
mandatory scheme, would have reached a significantly different
result. See United States v. De Jesus-Batres, 410 F.3d 154, 165
(5th Cir. 2005). Martinez’s arguments are speculative and are
based on arguments that he did not present to the district court.
He has failed to establish “with a probability sufficient to
undermine confidence in the outcome, that if the judge had
sentenced him under an advisory sentencing regime rather than a
mandatory one, he would have received a lesser sentence.” United
States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005) (citation
omitted). He has therefore failed to show that the error
affected his substantial rights and has thus failed to establish
plain error. See Martinez-Lugo, 411 F.3d at 600-01.
Accordingly, the district court’s judgment is AFFIRMED.