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. 04-41666
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOMERO CONDE-BRAVO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-461-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Homero Conde-Bravo (Conde) appeals his conviction and
sentence for illegally reentering the United States after
deportation. He argues 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). Conde 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-
*
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this opinion should not be published and is not precedent except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. 04-41666
-2-
Torres. See Apprendi, 530 U.S. at 489-90; United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
For the first time on appeal, Conde argues that the district
court erred in imposing his sentence under a mandatory guideline
scheme, in violation of United States v. Booker, 125 S. Ct. 738,
756-57 (2005). He asserts that this court should review his
claim de novo and that the error is “structural,” but he concedes
that under circuit precedent this court reviews the argument for
plain error because he did not raise it below. See United States
v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005),
petition for cert. filed (July 25, 2005) (No. 05-5556). Conde
concedes that he cannot show, as required by Valenzuela-Quevedo,
that the district court would likely have sentenced him
differently under an advisory sentencing scheme. Similarly,
there is no indication from the court’s remarks at sentencing
that the court would have imposed a sentence below the
appropriate guideline range. Thus, Conde has not met his burden
to show that the district court’s imposition of a sentence under
a mandatory guideline scheme was plain error. See Valenzuela-
Quevedo, 407 F.3d at 733; see also United States v. Bringier, 405
F.3d 310, 317 n.4 (5th Cir. 2005), petition for cert. filed (July
26, 2005) (No. 05-5535). Accordingly, Conde’s conviction and
sentence are AFFIRMED.