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. 04-41451
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODRIGO MENDOZA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-291-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Rodrigo Mendoza appeals his conviction and 20-month sentence
for being unlawfully present in the United States following
removal. For the first time on appeal, Mendoza argues that the
district court erred in imposing a sentence under a mandatory
guideline scheme, in violation of United States v. Booker,
125 S. Ct. 738, 756-57 (2005). He contends that the error is
structural and that prejudice should be presumed.
*
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this opinion should not be published and is not precedent except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. 04-41451
-2-
We review for plain error. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition
for cert. filed (July 25, 2005) (No. 05-5556). To obtain relief
under the plain error standard, Mendoza must show: (1) that
there was an error; (2) that the error was plain; and (3) the
error affected his substantial rights. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517). Even if these requirements
are met, this court has the discretion to correct the plain error
and will exercise that discretion only if “the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation
omitted).
Mendoza’s contention that the sentencing error was
structural and that he thus need not show prejudice is
unavailing. See United States v. Malveaux, 411 F.3d 558, 560 n.9
(5th Cir. 2005), petition for cert. filed (July 11, 2005)(No. 05-
5297). Because there is no indication in the record, based on
the district judge’s remarks or otherwise, that provides any
indication that the district court would likely have reached a
different conclusion if sentencing under the Booker advisory
regime, Mendoza has failed to satisfy his burden of establishing
plain error. See Mares, 402 F.3d at 522.
Mendoza also argues, citing Apprendi v. New Jersey, 530 U.S.
466 (2000), that the “felony” and “aggravated felony” provisions
No. 04-41451
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of 8 U.S.C. § 1326(b)(1) & (2) are unconstitutional. He
acknowledges that this argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), but he seeks to
preserve it for possible Supreme Court review.
Apprendi did not overrule Almendarez-Torres. Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation and citation omitted); see also Randell v. Johnson,
227 F.3d 300, 301 (5th Cir. 2000) (noting that the Supreme Court
has admonished lower courts to follow directly applicable
precedent even if it appears weakened by subsequent decisions).
Mendoza’s argument is foreclosed.
AFFIRMED.