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. 04-41118
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL EGUIA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-599-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Manuel Eguia-Hernandez appeals his conviction and sentence
for illegal reentry of an alien after having been deported. He
argues that the district court erred by imposing an eight-level
increase pursuant to U.S.S.G. § 2L1.2(b)(1)(C) for Eguia’s having
a prior aggravated felony conviction; that the provisions of
8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000); and that his sentence is
unconstitutional under United States v. Booker, 125 S. Ct. 738
*
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this opinion should not be published and is not precedent except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. 04-41118
-2-
(2005), because it was imposed pursuant to a mandatory guidelines
scheme.
Eguia contends that his state conviction for possession of a
controlled substance is not a qualifying aggravated felony
because it is not a felony under federal law. This court has
specifically held that a prior conviction for a state drug
offense will qualify as an aggravated felony under U.S.S.G.
§ 2L1.2(b)(1)(C) if it is punishable under the Controlled
Substances Act and punishable by more than one year of
imprisonment under the applicable state law. United States v.
Sanchez-Villalobos, 412 F.3d 572, 576 (5th Cir. 2005). Eguia
does not dispute that his state conviction was punishable under
the Controlled Substances Act. Additionally, Eguia was sentenced
to a ten-year term of imprisonment in connection with that
conviction. Thus, the argument is without merit.
Eguia’s argument that the provisions of 8 U.S.C. § 1326(b)
are unconstitutional is, as he concedes, foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).
Eguia also challenges his sentence as unconstitutional under
Booker. He argues that the error is structural in nature and
that prejudice should be presumed. This court rejected that
argument in United States v. Martinez-Lugo, 411 F.3d 597, 601
(5th Cir. 2005), and determined that an unpreserved error
challenging the mandatory nature of the guidelines is subject to
a plain-error analysis. United States v. Mares, 402 F.3d 511,
No. 04-41118
-3-
520 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517); United States v. Valenzuela-Quevedo, 407 F.3d 728,
732 (5th Cir. 2005), petition for cert. filed (July 25, 2005)
(No. 05-5556).
The district court committed error that is plain by
sentencing Eguia under a mandatory guidelines scheme.
Valenzuela-Quevedo, 407 F.3d at 733. However, Eguia fails to
carry his burden of showing that this error affected his
substantial rights. Id. at 733-34. Eguia concedes that the
district court did not indicate that it would have imposed a
lesser sentence in the absence of mandatory guidelines.
Accordingly, the judgment of the district court is AFFIRMED.