United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-40591
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO ANTONIO LERMA-VELA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-29-ALL
--------------------
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Marco Antonio Lerma-Vela appeals his sentence imposed
following his guilty plea conviction for illegal reentry into the
United States following deportation. The Government argues that
Lerma knowingly and voluntarily waived his right to appeal his
sentence, except for a sentence in excess of the statutory
maximum or any upward departure from established guidelines.
The prosecutor did not review the specific provisions of the
waiver during the rearraignment, and the magistrate judge did not
determine whether Lerma understood that the only exceptions to
*
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this opinion should not be published and is not precedent except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. 04-40591
-2-
the waiver were a sentence above the statutory maximum or an
upward departure. The magistrate judge and the Government
further confused the issue by their agreement that Lerma could
appeal an undefined “illegal sentence.” Because it cannot be
determined that the waiver was knowingly and voluntarily made by
Lerma, we do not enforce it. United States v. Robinson, 187 F.3d
516, 518 & n.2 (5th Cir. 1999); FED. R. CRIM. P. 11(b)(1)(N).
Lerma argues that the enhancement of his sentence based on
the mandatory sixteen-point adjustment to his offense level is
illegal under United States v. Booker, 125 S. Ct. 738 (2005).
As Lerma concedes, Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 529 U.S. 296, 124 S. Ct. 2531 (2004) held
that enhancements for prior convictions are not subject to the
Sixth Amendment jury trial requirements. Lerma’s sentence was
enhanced based only on his prior conviction. Thus, Lerma’s
sentence was not affected by a “Booker” error or a Sixth
Amendment violation. See Booker, 125 S. Ct. at 750, 769.
Sentencing a defendant pursuant to a mandatory Guidelines
scheme, without an accompanying Sixth Amendment violation,
constitutes “Fanfan” error. See United States v. Villegas,
404 F.3d 355, 364 (5th Cir. 2005). Fanfan error is subject to
the same plain error analysis set forth by this court in United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517), for Booker error.
No. 04-40591
-3-
United States v. Martinez-Lugo, __ F.3d__, No. 04-40478, 2005 WL
1331282, at *2 (5th Cir. June 7, 2005). To the extent that Lerma
urges that Mares was wrongly decided, that argument is
unavailing. See United States v. Ruff, 984 F.2d 635, 640 (5th
Cir. 1993).
Under the Mares analysis, Lerma has met the first two
prongs of the plain error test because Fanfan error is “error”
that is “plain.” See United States v. Valenzuela-Quevedo,
407 F.3d 728, 732-33 (5th Cir. 2005). To meet the third prong of
the analysis and show that the error affected his substantial
rights, Lerma bears the burden of showing “that the sentencing
judge--sentencing under an advisory scheme rather than a
mandatory one--would have reached a significantly different
result.” Mares, 402 F.3d at 520-21.
Review of the sentencing hearing reflects that Lerma cannot
make the required showing. The district court made no statements
indicating that it would impose a lesser sentence if it was not
bound by the guidelines. The district court’s comment that the
guidelines are sometimes harsh and its imposition of a sentence
at the bottom of the applicable guideline range do not
demonstrate that the sentence affected Lerma’s substantial
rights. See United States v. Bringier, 405 F.3d 310, 317 n.4
(5th Cir. 2005), petition for cert. filed (July 26, 2005)
(No. 05-5535). Accordingly, the judgment of the district court
is AFFIRMED.