United States v. Mesa-Franco

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. 04-41155
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURICIO MESA-FRANCO,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-217-ALL
--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Mauricio Mesa-Franco appeals his sentence following his

guilty-plea conviction of illegal reentry, in violation of

8 U.S.C. § 1326(a) and (b). The district court sentenced him to

24 months of imprisonment, two years of supervised release, and a

$100 special assessment.

For the first time on appeal, Mesa-Franco argues that, under

United States v. Booker, 125 S. Ct. 738 (2005), this court must

vacate his sentence and remand for resentencing because the

*
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this opinion should not be published and is not precedent except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. 04-41155
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mandatory guideline regime was in place at the time of his

sentencing. An unpreserved challenge to the application of the

formerly mandatory sentencing guidelines is reviewed for plain

error. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733

(5th Cir. 2005), petition for cert. filed (July 25, 2005) (No.

05-5556).

The district court’s application of the guidelines in their

mandatory form constituted error that is “plain” for purposes of

satisfying the first two prongs of the plain error analysis. Id.

However, Mesa-Franco bears the burden of demonstrating “that the

sentencing judge--sentencing under an advisory scheme rather than

a mandatory one--would have reached a significantly different

result.” See United States v. Mares, 402 F.3d 511, 521 (5th Cir.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

Mesa-Franco has not made such a showing.

Mesa-Franco also argues that 8 U.S.C. § 1326(b) is

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466

(2000), because it does not require the fact of a prior felony or

aggravated-felony conviction to be charged in the indictment and

proved beyond a reasonable doubt. As Mesa-Franco concedes, this

argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), and Almendarez-Torres was not overruled by

Apprendi. See United States v. Izaguirre-Flores, 405 F.3d 270,

277 (5th Cir. 2005), petition for cert. filed (July 22, 2005)
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(No. 05-5469). Accordingly, the judgment of the district court

is AFFIRMED.