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. 04-41723
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR NAVARRO-GALLARDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-588-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Oscar Navarro-Gallardo appeals his sentence imposed
following his guilty plea conviction for illegal reentry into the
United States following deportation. Navarro was sentenced to a
term of imprisonment of 57 months, to be followed by a three-year
term of supervised release.
Navarro argues that he was sentenced under the
unconstitutional mandatory guidelines system and that the error
constitutes plain error in light of United States v. Booker,
*
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this opinion should not be published and is not precedent except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. 04-41723
-2-
125 S. Ct. 738 (2005). He argues that the fact that the district
court imposed a sentence at the bottom of the guidelines range
shows that the error had an effect on his substantial rights.
Navarro further argues that it should be presumed that his
substantial rights were affected.
We review for plain error. See United States v. Mares, 402
F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517). Sentencing a defendant pursuant to a
mandatory Guidelines scheme, without an accompanying Sixth
Amendment violation, constitutes “Fanfan” error. See United
States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).
The court has rejected the argument urged by Navarro that
Fanfan error is structural and presumptively prejudicial, holding
that it is instead subject to the same plain error analysis set
forth in Mares. See United States v. Martinez-Lugo,
411 F.3d 597, 601 (5th Cir. 2005).
Navarro has met the first two prongs of the plain error test
because Fanfan error is “error” that is “plain.” 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).
In order to meet the third prong of the analysis and show that
the error affected his substantial rights, Navarro bears the
burden of showing that “that the sentencing judge--sentencing
under an advisory scheme rather than a mandatory one--would have
reached a significantly different result.” Mares, 402 F.3d at
No. 04-41723
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520-21. Navarro has failed to make that showing and, thus, has
failed to show plain error. See United Stares v. Bringier,
405 F.3d 310, 317 n.4 (5th Cir. 2005), petition for cert. filed
(July 26, 2005) (No. 05-5535).
Navarro argues for the first time on appeal and pursuant to
Apprendi v. New Jersey, 530 U.S. 466 (2000) that the sentencing
provisions of § 1326(b) are unconstitutional. He concedes that
this issue is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), and he raises it solely to preserve its
further review by the Supreme Court.
Almendarez-Torres, 523 U.S. at 235, held that a prior
conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and
not a separate criminal offense. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also
Blakely v. Washington, 124 S. Ct. 2531, 2536, 2548 (2004).
Booker did not overrule Almendarez-Torres. See Booker, 125
S. Ct. at 756. This court does not have the authority to
overrule Almendarez-Torres. See United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000). This argument is therefore
foreclosed.
AFFIRMED.