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. 05-20052
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSELIA GOICOCHEA-SUAZO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-387-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Roselia Goicochea-Suazo appeals her guilty-plea conviction
and sentence imposed for illegal reentry into the United States
of a previously deported alien after an aggravated felony
conviction in violation of 8 U.S.C. § 1326(a) & (b)(2). She
argues that the district court plainly erred in imposing her
sentence pursuant to the then mandatory United States Sentencing
Guidelines, which were subsequently held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005). We review for
plain error. See United States v. Mares, 402 F.3d 511, 520 (5th
*
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this opinion should not be published and is not precedent except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. 05-20052
-2-
Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No. 04-
9517). Goicochea-Suazo cannot show that she was prejudiced by
the error because the district court sentenced her to the lowest
possible sentence within the guidelines range and nothing in the
sentencing transcript indicates that the district court would
have imposed a lesser sentence if it had known that the
guidelines were not mandatory. See United States v. Martinez-
Lugo, 411 F.3d 597, 601 (5th Cir. 2005); United States v.
Bringier, 405 F.3d 310, 317 (5th Cir. 2005), petition for cert.
filed (July 26, 2005) (No. 05-5535). The fact that the district
court imposed the minimum sentence within the applicable
guideline range does not indicate that the judge would have
imposed a lower sentence under an advisory guideline scheme. See
Bringier, 405 F.3d at 317. Therefore, Goicochea-Suazo has not
shown that the district court plainly erred in imposing her
sentence pursuant to the mandatory Guidelines, which were
subsequently held unconstitutional in Booker. Thus, Goicochea-
Suazo has not shown reversible plain error. See Mares, 402 F.3d
at 520-21.
Goicochea-Suazo argues that the statute under which she was
convicted, 8 U.S.C. § 1326(b), is unconstitutional in view of
Apprendi v. New Jersey, 530 U.S. 466 (2000). She acknowledges
that this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but states that she is raising it to
preserve it for possible Supreme Court review. Because she did
No. 05-20052
-3-
not raise this issue in the district court, review is limited to
plain error. See Mares, 402 F.3d at 520-21.
Almendarez-Torres held that § 1326(b)(2)’s enhancement
provision is a sentencing factor and not a separate offense that
must be alleged in the indictment. Almendarez-Torres, 523 U.S.
at 235. Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; see also United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000) (noting that the Supreme Court
in Apprendi expressly declined to overrule Almendarez-Torres).
This court must follow the precedent set in Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation and citation
omitted). This argument is, as Goicochea-Suazo concedes,
foreclosed.
AFFIRMED.