United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 18, 2005
Charles R. Fulbruge III
Clerk
No. 05-10055
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CRUZ GONZALEZ-RENTERIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-275-ALL
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Before BENAVIDES, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Cruz Gonzalez-Renteria appeals his conviction and
sentence for illegal reentry. He first contends that his
sentence is invalid in light of United States v. Booker, 125 S.
Ct. 738 (2005) because the sentencing judge applied the
sentencing guidelines as if they were mandatory. Because
Gonzalez-Renteria did not raise this issue in the district court,
we review it only for plain error. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005). Although
*
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that this opinion should not be published and is not precedent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. 05-10055
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there was an error under Booker, Gonzalez-Renteria fails to
demonstrate that the district court would have imposed a
different sentence under advisory guidelines. Id. at 733. He
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, 521-22 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Gonzalez-Renteria argues that the district court plainly
erred in calculating his criminal history points by refusing to
treat his prior sentence for failure to identify as a “related
case” under U.S.S.G. § 4A1.2(a)(2). Given that the failure-to-
identify offense and the instant illegal reentry offenses did not
occur simultaneously, they were not committed against the same
victim, they were not identical offenses, and they were not
committed at the same geographic location, it cannot be said that
the district court erred in determining that these were separate
offenses for purposes of calculating Gonzalez-Renteria’s criminal
history points. United States v. Moreno-Arredondo, 255 F.3d 198,
201, 207 (5th Cir. 2001).
Gonzalez-Renteria argues pursuant to Apprendi v. New Jersey,
530 U.S. 466 (2000), that Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), should be overruled. He concedes that his
constitutional argument is contrary to the Supreme Court’s
decision in Almendarez-Torres, but he argues that Almendarez-
Torres was wrongly decided.
No. 05-10055
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Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). The Supreme Court’s recent decisions in Shepard
v. United States, 125 S. Ct. 1254, 1262-63 & n.5 (2005), Booker,
and Blakely v. Washington, 542 U.S. 2961, 124 S. Ct. 2531 (2004),
also did not overrule Almendarez-Torres. We therefore must
follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984
(internal quotation marks and citation omitted). The judgment of
the district court is AFFIRMED.