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. 04-41756
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMERICA VASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-586-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
America Vasquez pled guilty to possession with intent to
distribute 2.3 kilograms of cocaine and was sentenced to 46
months of imprisonment, three years of supervised release, and a
$100 special assessment. Vasquez argues for the first time on
appeal that her sentence is unconstitutional in light of United
States v. Booker, 125 S. Ct. 738 (2005), because she was
sentenced under a mandatory guidelines scheme. We review for
plain error. United States v. Mares, 402 F.3d 511, 520 (5th Cir.
*
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this opinion should not be published and is not precedent except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. 04-41756
-2-
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517);
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 Vasquez under a mandatory sentencing guidelines
scheme. Valenzuela-Quevedo, 407 F.3d at 733. However, Vasquez
fails to carry her burden of showing that this error affected her
substantial rights. Id. at 733-34. The district court made no
comments indicating that it would have imposed a lesser sentence
in the absence of mandatory guidelines.
Vasquez also argues for the first time on appeal that the
statute of conviction, 21 U.S.C. § 841 (a), (b) is
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466
(2000). However, she concedes that this issue is foreclosed and
raises it only to preserve it for further review. See United
States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
Accordingly, the judgment of the district court is AFFIRMED.