United States v. Cantu-Rios

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

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-1073
--------------------

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On December 17, 2004, in an unpublished opinion, this court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 Appx. 744, 745 (5th Cir. 2004)(unpublished).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this opinion should not be published and is not precedent except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.