United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2005
Charles R. Fulbruge III
Clerk
No. 04-51035
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RENE PEREZ-MARQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(3:03-CR-2345-ALL-KC)
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Before JONES, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Rene Perez-Marquez (“Perez”) appeals
his 41-month sentence imposed following his guilty-plea conviction
for illegal reentry into the United States following deportation.
Citing United States v. Booker, 125 S. Ct. 738 (2005), he argues,
for the first time on appeal, that the district court erred in
sentencing him under a mandatory guideline scheme.
As Perez did not raise his Booker argument in the district
court, we review this issue for plain error. See United States v.
*
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this opinion should not be published and is not precedent except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.
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005). The
district court committed error that is plain when it sentenced
Perez under a mandatory guideline scheme. See id. at 733; United
States v. Martinez-Lugo, __ F.3d __, No. 04-40478, 2005 WL 1331282
*2 (5th Cir. June 7, 2005). Perez fails, however, to meet his
burden of showing that the district court’s error affected his
substantial rights. See Valenzuela-Quevedo, 407 F.3d at 733-34;
United States v. Mares, 402 F.3d 511, 521 (5th Cir.), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517).
As Perez concedes, his constitutional argument that his
sentence, which was enhanced under 8 U.S.C. § 1326(b) for a prior
aggravated felony conviction, is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998). See Apprendi v. New Jersey,
530 U.S. 466, 489-90 (2000); United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000). Accordingly, Perez’s sentence is
AFFIRMED.
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