United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-41115
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO ESQUIVEL-JUAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-317-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Rodolfo Esquivel-Juarez (Esquivel) appeals the 70-month
sentence imposed after he pleaded guilty to one count of illegal
reentry into the United States. See 8 U.S.C. § 1326.
Esquivel contends that 8 U.S.C. § 1326(b) is
unconstitutional and that this court should vacate his sentence
and remand his case for resentencing to no more than two years in
prison under 8 U.S.C. § 1326(a). As he concedes, this contention
*
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this opinion should not be published and is not precedent except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. 04-41115
-2-
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998).
Esquivel also contends that he is entitled to resentencing
because the district court sentenced him under a mandatory
application of the federal sentencing guidelines contrary to the
rule of United States v. Booker, 125 S. Ct. 738, 756-57, 769
(2005). We review for plain error. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition
for cert. filed (July 25, 2005) (No. 05-5556). Although there
was an error, Esquivel has failed to demonstrate a sufficient
probability “that the district judge would have imposed a
different sentence” under advisory guidelines. See id. at 733.
Esquivel thus fails to show that the error affected his
substantial rights as he must do to meet the plain-error
standard. See id.; United States v. Mares, 402 F.3d 511, 502,
521-22 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517).
The judgment of the district court is AFFIRMED.