United States v. Gallegos-Alvarez

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. 04-50112
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID GALLEGOS-ALVAREZ,
Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-1668-ALL
--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

David Gallegos-Alvarez appeals the sentence imposed

following his guilty-plea conviction for illegal reentry into the

United States following deportation. For the first time on

appeal, Gallegos argues that the district court committed plain

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

sentencing him pursuant to a mandatory application of the

sentencing guidelines. He suggests that this issue might not be

subject to plain error review. He additionally asserts that the

error was plain because it was structural or because prejudice

*
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this opinion should not be published and is not precedent except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. 04-50112
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should otherwise be presumed. He further maintains that he was

prejudiced by the error because the district court may have given

him a lesser sentence if it had known that the guidelines were

merely advisory.

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’s error

was not structural and prejudice is not presumed. See United

States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005);

United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.

2005), petition for cert. filed (July 11, 2005) (No. 05-5297).

Although the district court was sympathetic to him, Gallegos has

not shown that he was prejudiced or that the district court

committed plain error. See United States v. Creech, 408 F.3d

264, 272 (5th Cir. 2005) (mere sympathy to defendant is

insufficient); United States v. Bringier, 405 F.3d 310, 317

& n.4 (5th Cir. 2005) (sentence at bottom of guidelines range is

insufficient), petition for cert. filed (July 26, 2005)

(No. 05-5535); see also Martinez-Lugo, 411 F.3d at 600 (plain

error analysis is the same for Sixth Amendment Booker error and

“Fanfan” error).

Also for the first time on appeal, Gallegos argues that the

sentence enhancing provisions contained in 8 U.S.C. §§ 1326(b)(1)

and (b)(2) are unconstitutional. This argument is foreclosed by

the Supreme Court’s decision in Almendarez-Torres v. United
 No. 04-50112
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States, 523 U.S. 224, 235 (1998). Apprendi v. New Jersey, 530

U.S. 466 (2000), did not overrule Almendarez-Torres. See

Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000). The Supreme Court’s decisions in

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and

Booker did not overrule Almendarez-Torres. See Booker, 125 S.

Ct. at 756; Blakely, 124 S. Ct. at 2536-43. This court must

follow the precedent set in Almendarez-Torres “unless and until

the Supreme Court itself determines to overrule it.” Dabeit, 231

F.3d at 984 (quotation marks omitted).

AFFIRMED.