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. 04-51311
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME CHAVEZ-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-387-1-AML
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jaime Chavez-Gonzalez appeals the sentence imposed following
his guilty plea to illegal reentry following deportation. Chavez
was sentenced to a term of imprisonment of 46 months, to be
followed by a three-year term of supervised release.
Chavez argues for the first time on appeal that, in light of
United States v. Booker, 125 S. Ct. 738 (2005), the district
court plainly erred in sentencing him under a mandatory
guidelines system based upon facts that were not admitted by him
or found by a jury. He argues that the district court violated
*
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this opinion should not be published and is not precedent except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. 04-51311
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the Sixth Amendment by raising his sentence based on its factual
determination that Chavez committed the instant offense while he
was on probation. He asserts that the district court would have
imposed a different sentence if it had known that it was acting
under an advisory sentencing guidelines system.
Chavez’s claim that the district court plainly erred by
enhancing his sentence based upon facts not determined by a jury
and which he did not admit is unavailing because he failed to
show that “the sentencing judge--sentencing under an advisory
scheme rather then a mandatory one--would have reached a
significantly different result.” See United States v. Mares,
402 F.3d 511, 520-522 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517); see also United States v.
Bringier, 405 F.3d 310, 317 n.4 (5th Cir. 2005), petition for
cert. filed (July 26, 2005) (No. 05-5535).
Chavez’s argument that the district court’s application of
the guidelines as mandatory was plain error also fails because he
did not show that the district court would have imposed a
different sentence had the guidelines been advisory only. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-34 (5th
Cir. 2005), petition for cert. filed (July 25, 2005) (No. 05-
5556).
Chavez 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,
No. 04-51311
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this contention is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See United States v. Mancia-Perez,
331 F.3d 464, 470 (5th Cir.), cert. denied, 540 U.S. 935 (2003).
AFFIRMED.