United States v. Martinez-Mendez

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. 04-41527
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO MARTINEZ-MENDEZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-222-ALL
--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Alberto Martinez-Mendez (“Martinez”) appeals following his

guilty plea to a charge of being present illegally in the United

States after deportation subsequent to conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326. Martinez

argues that the “felony” and “aggravated felony” provisions of

8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. He

acknowledges that his argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), but he seeks

*
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this opinion should not be published and is not precedent except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. 04-41527
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to preserve his argument for further review in light of Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000). Apprendi did not

overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;

United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.),

cert. denied, 540 U.S. 935 (2003). Martinez further asserts

that, if Almendarez-Torres is overruled and if Blakely v.

Washington, 124 S. Ct. 2531 (2004), applies to the Federal

Sentencing Guidelines, his sentence could not be enhanced based

on his prior convictions, unless they were submitted to a jury or

admitted by him. As noted, Almendarez-Torres has not been

overruled. This court must follow Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

Mancia-Perez, 331 F.3d at 470 (internal quotation and citation

omitted).

Martinez argues that the district court committed reversible

error by imposing a sentence pursuant to the mandatory Federal

Sentencing Guidelines system that was held unconstitutional in

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

The district court committed error that is plain by

sentencing Martinez under a mandatory Sentencing Guidelines

scheme. See id.; United States v. Mares, 402 F.3d 511, 520-21

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No.
 No. 04-41527
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04-9517). However, Martinez has not carried his burden of

showing that the district court’s error affected his substantial

rights. See Valenzuela-Quevedo, 407 F.3d at 733-34; Mares, 402

F.3d at 521.

Accordingly, the district court’s judgment is AFFIRMED.