United States v. Quezada

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. 04-51276
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL QUEZADA,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-454-ALL
--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Manuel Quezada appeals the 70-month sentence he received

after pleading guilty to one count of illegal reentry into the

United States after having been deported. See 8 U.S.C. § 1326.

Quezada contends that his sentence should have been limited

to two years because his indictment failed to allege a prior

felony conviction used to increase his sentence. As he concedes,

this contention is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998).

*
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this opinion should not be published and is not precedent except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. 04-51276
-2-

Quezada also contends that he is entitled to resentencing

because the district court sentenced him under a mandatory

application of the Guidelines prohibited by United States v.

Booker, 125 S. Ct. 738, 756-57, 769 (2005). 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). Although there was an error under Booker, Quezada

fails to “demonstrate a probability sufficient to undermine

confidence in the outcome . . . that the district judge would

have imposed a different sentence” under advisory guidelines.

Valenzuela-Quevedo, 407 F.3d at 733 (internal quotation marks and

citation omitted). Quezada therefore fails to show that the

error affected his substantial rights as is necessary under the

plain-error standard. See id.; United States v. Mares, 402 F.3d

511, 502, 521-22 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517).

The judgment of the district court is AFFIRMED.