United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2005
Charles R. Fulbruge III
Clerk
No. 04-41157
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR RODRIGUEZ-CASTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-314-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Victor Rodriguez-Castillo pleaded guilty pursuant to a plea
agreement to attempted reentry after deportation in violation of 8
U.S.C. §§ 1326(a) and (b) and was sentenced to 18 months of
imprisonment and three years of supervised release. He appeals his
conviction and sentence.
For the first time on appeal, Rodriguez-Castillo contends that
he was illegally sentenced pursuant to the formerly mandatory
sentencing guidelines regime, in violation of United States v.
*
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this opinion should not be published and is not precedent except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. 04-41157
-2-
Booker, 125 S. Ct. 738 (2005). Rodriguez-Castillo’s plea agreement
contained a waiver-of-appeal provision by which he waived “the
right to appeal the sentence imposed or the manner in which it was
determined,” except for a sentence above the statutory maximum or
an upward departure from the applicable guidelines range. At his
rearraignment, the magistrate judge incorrectly told him that he
retained the right to appeal an “illegal sentence.” Rodriguez-
Castillo does not dispute the voluntariness of his plea. However,
because we have considered the waiver issue as a jurisdictional
matter, we raise this aspect of the waiver issue sua sponte. See
United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001).
Because the magistrate judge inaccurately described the waiver
provision, Rodriguez-Castillo’s waiver cannot be deemed knowing and
voluntary with respect to an “illegal sentence.” See FED. R. CRIM.
P. 11(b)(1)(N); United States v. Robinson, 187 F.3d 516, 517-18
(5th Cir. 1999).
Sentencing a defendant pursuant to a mandatory guidelines
scheme, standing alone, constitutes “Fanfan” error, and such an
error is “plain.” See Booker, 125 S. Ct. at 769; United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005). Rodriguez-
Castillo makes no argument, and “there is no indication in the
record from the sentencing judge’s remarks or otherwise” that the
court would have imposed a different sentence under an advisory
guidelines regime. United States v. Mares, 402 F.3d 511, 522 (5th
Cir. 2005), petition for cert. filed (Mar. 31, 2005)(No. 04-9517).
No. 04-41157
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Because Rodriguez-Castillo has not shown that the error affected
his “substantial rights,” see id. at 521, he has not demonstrated
plain error.
Rodriguez-Castillo also argues that, under Apprendi v. New
Jersey, 530 U.S. 466 (2000), and its progeny, 8 U.S.C. § 1326(b) is
unconstitutional because it permits a sentencing judge to increase
a sentence beyond the statutory maximum based on a factor that need
not be submitted to a jury for proof or admitted by the defendant.
Rodriguez-Castillo concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
he seeks to preserve the issue for possible Supreme Court review.
This court must follow Almendarez-Torres “‘unless and until the
Supreme Court itself determines to overrule it.’” United States v.
Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir. 2005) (citation
omitted).
AFFIRMED.