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. 04-40649
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
OSCAR CANTU-RIOS
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-1073
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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:*
On December 17, 2004, in an unpublished opinion, this court
affirmed the sentence of Oscar Cantu-Rios. United States v.
Cantu-Rios, 115 Fed. Appx. 744, 745 (5th Cir. 2004)(unpublished).
The Supreme Court has vacated and remanded for further
consideration in light of United States v. Booker, 125 S. Ct. 738
(2005).
*
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this opinion should not be published and is not precedent except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. 04-40649
-2-
In his original appeal to this court, Cantu-Rios argued that
the sentencing provisions set forth in 8 U.S.C. § 1326(b) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), because they do not require the fact of a prior
felony or aggravated felony conviction to be charged in the
indictment and proved beyond a reasonable doubt. As Cantu-Rios
conceded, however, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
which held that the enhanced penalties in 8 U.S.C. § 1326(b) are
constitutionally acceptable sentencing provisions. See United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Cantu-Rios
also argued that if Almendarez-Torres is overruled, the Supreme
Court’s holding in Blakely v. Washington, 124 S. Ct. 2531, 2536
(2004), renders unconstitutional the district court’s calculation
of his sentence under the United States Sentencing Guidelines
based on facts relating to his prior convictions that were
neither found by a jury beyond a reasonable doubt nor admitted by
him. Cantu-Rios’s arguments fail because Almendarez-Torres has
not been overruled, and the enhancement of a sentence based on
prior convictions does not violate the Sixth Amendment.
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000);
Booker, 125 S. Ct. at 756.
In his supplemental brief, Cantu-Rios argues that the
district court erred by sentencing him under the mandatory
Sentencing Guidelines scheme held unconstitutional in Booker.
No. 04-40649
-3-
See id. As Cantu-Rios has raised the argument for the first time
on appeal, the district court’s actions are reviewed for plain
error only. See United States v. Martinez-Lugo, 411 F.3d 597,
600 (5th Cir. 2005). Cantu-Rios has satisfied the first two
prongs of the plain error analysis by showing that the district
court committed error that was plain. See id. The error is not
a structural one, however, and Cantu-Rios has not satisfied the
third prong of the plain error analysis by showing that the error
affected his substantial rights. See id. at 600-01; United
States v. Bringier, 405 F.3d 310, 318 & n.4 (5th Cir. 2005),
petition for cert. filed (July 26, 2005) (No. 05-5535).
Nothing in the Supreme Court’s Booker decision requires us
to change our prior affirmance in this case. We therefore affirm
the conviction and sentence as set by the district court.
AFFIRMED.