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. 04-41536
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ALBERTO SALGADO-AVILA,
also known as Jose Ramirez-Avila,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-273-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jorge Alberto Salgado-Avila appeals his guilty-plea
conviction and sentence for being a previously deported alien
found in the United States illegally. Salgado-Avila argues that
the district court plainly erred in applying the Sentencing
Guidelines in a mandatory manner. He contends that, because this
error was structural in nature, prejudice should be presumed, and
we should exercise our discretion to reverse the sentence. He
also argues that in the event that this court holds that United
*
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this opinion should not be published and is not precedent except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. 04-41536
-2-
States v. Infante, 404 F.3d 376 (5th Cir. 2005), and United
States v. Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517), control the outcome of his
appeal, he wishes to preserve for possible future review his
argument that those cases were wrongly decided and conflict with
other circuits.
Here, the district court erred by imposing a sentence
pursuant to a mandatory application of the sentencing guidelines.
See United States v. Booker, 125 S. Ct. 738, 768 (2005); see also
Mares, 402 F.3d at 520-21 & n.9. However, Salgado-Avila has not
established that this error affected his substantial rights
because the record does not demonstrate that the sentencing court
would have imposed a different sentence had it been proceeding
under an advisory guideline scheme. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733-34 (5th Cir. 2005),
petition for cert. filed (July 25, 2005)(No. 05-5556).
Salgado-Avila also argues that, given Apprendi v. New
Jersey, 530 U.S. 466 (2000), the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
He concedes that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
the issue for possible further review. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90. The
district court’s judgment is AFFIRMED.