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. 04-40743
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FIDEL DIAZ-PEREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-57-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Fidel Diaz-Perez (“Diaz”) appeals his 63-month sentence
imposed following his guilty plea to being unlawfully present in
the United States following deportation. Diaz argues that his
sentence is unconstitutional, in light of United States v.
Booker, 125 S. Ct. 738 (2005), because he was sentenced under a
mandatory guideline scheme. He further argues that the
enhancement provisions of 8 U.S.C. § 1326(a) and (b) are
unconstitutional.
*
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this opinion should not be published and is not precedent except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. 04-40743
-2-
Pursuant to his plea agreement, Diaz waived the right to
appeal his sentence or the manner in which it was imposed, except
for a sentence above the statutory maximum or an upward departure
from the applicable guideline range. The transcript of the plea
hearing reflects that the magistrate judge erroneously advised
Diaz that he could “still appeal for an illegal sentence.” This
statement inaccurately described the waiver-of-appeal provision
contained in Diaz’s plea agreement. Thus, it cannot be said that
Diaz knowingly and voluntarily waived the right to appeal his
sentence. See United States v. Robinson, 187 F.3d 516, 517 (5th
Cir. 1999). Therefore, Diaz’s appeal waiver does not bar the
instant appeal. Id.
Diaz’s assertion that the district court’s application of
the guidelines as mandatory is “structural and insusceptible of
harmless error analysis” or, alternatively, that the error is
presumptively prejudicial has been rejected by this court. See
United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.
2005); United States v. Malveaux, 411 F.3d 558, 560-61 n.9 (5th
Cir. 2005), petition for cert. filed, (July 11, 2005) (No. 05-
5297). We review Diaz’s Booker-based argument for plain error.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33
(5th Cir. 2005), petition for cert. filed, (July 25, 2005) (No.
05-5556). The district court committed error that is plain when
it sentenced Diaz under a mandatory guideline scheme. See id. at
733; Martinez-Lugo, 411 F.3d at 600. Diaz, however, fails to
No. 04-40743
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meet his burden of showing that the district court’s error
affected his substantial rights. See Valenzuela-Quevedo, 407
F.3d at 733-34; United States v. Mares, 402 F.3d 511, 521 (5th
Cir. 2005), petition for cert. filed, (Mar. 31, 2005) (No. 04-
9517); see also United States v. Bringier, 405 F.3d 310, 317-18
n.4 (5th Cir. 2005), petition for cert. filed, (July 26, 2005)
(No. 05-5535).
As he concedes, Diaz’s argument that the sentencing
provisions in 8 U.S.C. § 1326(a) and (b) are unconstitutional is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000);
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Accordingly, Diaz’s sentence is AFFIRMED.