United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-40601
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
SERGIO DURAN-GOMEZ, also known as Sergio Duran
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-94-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
We affirmed the conviction and sentence of Sergio Duran-
Gomez (“Duran”). United States v. Duran-Gomez, No. 04-40601
(Dec. 17, 2004) (per curiam). The Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). We requested and received
supplemental letter briefs addressing the impact of Booker.
*
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this opinion should not be published and is not precedent except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. 04-40601
-2-
Duran argued in his initial brief and in his petition for a
writ of certiorari that his sentence should be vacated because he
was sentenced under the erroneous assumption that the Guidelines
were mandatory. Our review of this issue is for plain error.
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
Although Duran has satisfied the first two criteria for
establishing plain error, he is required to demonstrate that “the
sentencing judge--sentencing under an advisory scheme rather than
a mandatory one--would have reached a significantly different
result.” United States v. Mares, 402 F.3d 511, 521 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517);
Valenzuela-Quevedo, 407 F.3d at 733. Duran has not met his
burden because there is “no evidence in the record suggesting
that the district court would have imposed a lesser sentence
under an advisory guidelines system.” United States v. Taylor,
409 F.3d 675, 677 (5th Cir. 2005).
In his initial brief, Duran challenged the constitutionality
of 8 U.S.C. § 1326(b) and the validity of Almendarez-Torres v.
United States, 523 U.S. 224 (1998). Duran conceded that his
argument was foreclosed by existing precedent, but he sought to
preserve the issue for further review. Nothing in the Supreme
Court’s Booker decision affected the validity of Almendarez-
Torres. See Booker, 125 S. Ct. at 756 (the Booker holding
applies to any fact (other than a prior conviction)). The
No. 04-40601
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decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), left
Almendarez-Torres intact. See Apprendi, 530 U.S. at 489-90
(“fact of a prior conviction” need not be submitted to a jury).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
therefore reinstate our judgment affirming Duran’s conviction.
For the reasons set forth in this opinion on remand, his sentence
is also AFFIRMED.
AFFIRMED.