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. 05-50048
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ROBERT GALICIA-PENA, also
known as Jose Roberto Galicia-Pena,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-721-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Robert Galicia-Pena (“Galicia”) appeals following his
conviction in a bench trial for illegal reentry after
deportation, in violation of 8 U.S.C. § 1326. Galicia argues
that the district court committed reversible plain error by
increasing the maximum authorized Guidelines sentence based on
facts neither admitted nor found by a jury, and by imposing a
sentence under a mandatory Guidelines scheme. Galicia correctly
concedes that he cannot carry his burden of showing that the
*
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this opinion should not be published and is not precedent except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. 05-50048
-2-
district court’s error affected his substantial rights. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733-34 (5th
Cir. 2005), petition for cert. filed (July 25, 2005) (No.
05-5556); United States v. Mares, 402 F.3d 511, 521 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Galicia also argues that because his indictment did not
allege a prior felony conviction, he was subject to a maximum
sentence of two years under U.S.C. § 1326(a). He correctly
acknowledges that his argument is 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. The
Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED.