United States v. Cortez-Villanueva

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 3, 2005

Charles R. Fulbruge III
Clerk
No. 04-41193
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE CORTEZ-VILLANUEVA, also known as Jose Luis
Hernandez-Cortez,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-336-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Cortez-Villanueva (“Cortez”) appeals his sentence

following his guilty-plea conviction for illegal reentry after

deportation. We pretermit discussion of the validity of his appeal

waiver because, for the reasons discussed below, Cortez is not

entitled to relief.

Cortez argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) 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this opinion should not be published and is not precedent except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. 04-41193
-2-

in light of the Supreme Court’s decision in Apprendi v. New Jersey,

530 U.S. 466 (2000). Cortez’s argument concerning the

constitutionality of 8 U.S.C. § 1326(b) is, as he concedes,

foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224

(1998); United States v. Izaguirre-Flores, 405 F.3d 270, 277-78

(5th Cir. 2005), petition for cert. filed (July 22, 2005) (No.

05-5469).

Cortez also argues for the first time in a supplemental brief

that the district court erred by sentencing him under the mandatory

Guideline regime held unconstitutional in United States v. Booker,

125 S. Ct. 738 (2005). We review this argument for plain error.

See United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.

2005). Our review of the record does not reveal that the district

court’s error affected the outcome of the sentencing proceedings.

See id. at 600-01. Therefore, Cortez has failed to establish that

the error affected his substantial rights and he consequently

cannot meet the plain error standard of review. Id.

AFFIRMED.