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. 04-41161
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO RAMIREZ-OROZCO,
also known as Paul Jacob Ramirez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-1135-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Leonardo Ramirez-Orozco (“Ramirez”) appeals his 57-month
sentence imposed following his guilty-plea conviction for
attempted illegal reentry into the United States after having
been previously deported. For the first time on appeal, Ramirez
argues that his sentence is unconstitutional, in light of United
States v. Booker, 125 S. Ct. 738 (2005), because his sentence was
increased based upon facts that he did not admit. Specifically,
he contends that the district court’s determination, pursuant to
*
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this opinion should not be published and is not precedent except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. 04-41161
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U.S.S.G. § 4A1.1(d), that he was on parole at the time he
committed the instant offense violated his Sixth Amendment
rights. He further contends that his sentence is
unconstitutional because it was imposed pursuant to a mandatory
application of the sentencing guidelines.
We review for plain error. See United States v. Mares, 402
F.3d 511, 520-21 (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). Ramirez’s argument that the Booker errors
are structural and insusceptible of harmless error analysis has
been rejected by this court. See United States v. Martinez-Lugo,
411 F.3d 597, 601 (5th Cir. 2005). Ramirez’s alternative
argument that any Booker error should be presumed prejudicial has
also been rejected by this court. Id. Thus, Ramirez must show:
(1) an error; (2) that is clear or plain; (3) that affected his
substantial rights; and (4) that seriously affected the fairness,
integrity or public reputation of his judicial proceedings.
United States v. Olano, 507 U.S. 725, 732-35 (1993).
Ramirez makes no showing that the district court would
likely have sentenced him differently under the Booker advisory
scheme. Similarly, there is no indication from the court’s
remarks at sentencing that the court would have reached a
different conclusion. Thus, Ramirez has not demonstrated that
his substantial rights were affected, and he has thus failed to
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carry his burden under plain-error review. See Mares, 402 F.3d
at 521-22; Valenzuela-Quevedo, 407 F.3d at 733-34.
As he concedes, Ramirez’s argument that the sentencing
provisions of 8 U.S.C. § 1326(b) are unconstitutional is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000);
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.