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. 04-51434
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES FLORES-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-538-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Andres Flores-Martinez (“Flores”) appeals from his 30-month
prison sentence, following his guilty-plea conviction of
illegally reentering the United States, in violation of 8 U.S.C.
§ 1326(a) and (b). Flores raises arguments that are foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
which held that a prior conviction is a sentencing factor under
8 U.S.C. § 1326(b)(2) and not a separate criminal offense.
Flores also concedes that his unpreserved challenge to his
*
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that this opinion should not be published and is not precedent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. 04-51434
-2-
sentence under United States v. Booker, 125 S. Ct. 738 (2005), is
meritless, because he cannot show that his “substantial rights”
were affected under the standard set forth in United States v.
Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517).
The Government’s motion for summary affirmance is GRANTED,
and the judgment of the district court is AFFIRMED.
United States v. Flores-Martinez
Combined Opinion