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. 04-51051
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO CALDERILLA-REGALADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-226-1-WWJ
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Rolando Calderilla-Regalado appeals his sentence following
his guilty-plea conviction of illegal reentry, in violation of
8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him
to 30 months of imprisonment, three years of supervised release,
and a $100 special assessment.
Calderilla-Regalado argues that his sentence violates his
due process rights, under Apprendi v. New Jersey, 530 U.S. 466
(2000), because he was sentenced based on a prior aggravated
*
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this opinion should not be published and is not precedent except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. 04-51051
-2-
felony not alleged in his indictment. As Calderilla-Regalado
concedes, this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998). We must follow
Almendarez-Torres “‘unless and until the Supreme Court itself
determines to overrule it.’” United States v. Mancia-Perez, 331
F.3d 464, 470 (5th Cir. 2003) (citation omitted).
For the first time on appeal, Calderilla-Regalado argues
that, under United States v. Booker, 125 S. Ct. 738 (2005), this
court must vacate his sentence and remand for resentencing
because the district court violated his Sixth Amendment rights
when it sentenced him based on its finding that he was on
supervised release at the time he committed the offense. He also
argues that the district court erred by sentencing him under the
pre-Booker mandatory guideline regime. Because Calderilla-
Regalado did not preserve the arguments in the district court,
our review is 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).
The district court’s application of the guidelines in their
mandatory form constituted error that is “plain” for purposes of
satisfying the first two prongs of the plain error analysis.
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
Calderilla-Regalado also bears the burden of demonstrating “that
the sentencing judge--sentencing under an advisory scheme rather
No. 04-51051
-3-
than a mandatory one--would have reached a significantly
different result.” See Mares, 402 F.3d at 521. Calderilla-
Regalado has not made such a showing with respect to his Sixth
Amendment claim or his claim regarding the mandatory application
of the guidelines. Accordingly, the judgment of the district
court is AFFIRMED.