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. 04-41507
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEODORO HIPOLITO-ALCANTAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-959-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Teodoro Hipolito-Alcantar (Hipolito), appeals his conviction
and sentence for attempted reentry into the United States
following a prior aggravated felony conviction. See 8 U.S.C.
§ 1326 (a), (b).
For the first time on appeal, Hipolito 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). We review for plain error. See
*
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this opinion should not be published and is not precedent except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. 04-41507
-2-
United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.
2005). Hipolito makes no showing, as required by Martinez-Lugo,
that the district court would likely have sentenced him
differently under an advisory sentencing scheme. Similarly,
there is no indication from the district court’s remarks at
sentencing that it would have reached a different conclusion.
Thus, Hipolito has not met his burden of persuasion to show that
the district court’s imposition of a sentence under a mandatory
guideline scheme was plain error. See Martinez-Lugo, 411 F.3d at
601.
Hipolito also argues for the first time on appeal that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Hipolito acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review. Apprendi
did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at
489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).
AFFIRMED.