United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 7, 2005
Charles R. Fulbruge III
Clerk
No. 05-40053
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO CASTRO-AGUILAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-702-ALL
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Armando Castro-Aguilar (“Castro”) appeals his guilty-plea
conviction of having been found in the United States after
deportation, without having obtained the consent of the Attorney
General or the Secretary of Homeland Security to re-enter the
country, and after having been convicted of an “aggravated
felony,” in violation of 8 U.S.C. § 1326(a) and (b). The
district court sentenced Castro to 46 months of imprisonment
followed by two years of supervised release and imposed the
mandatory assessment. The Government expressly declines to seek
*
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this opinion should not be published and is not precedent except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. 05-40053
-2-
enforcement of the waiver provision in Castro’s plea agreement;
therefore, this court will not enforce it. See United States v.
Rhodes, 253 F.3d 800, 804 (5th Cir. 2001).
For the first time on appeal, Castro argues that the
district court erred by imposing sentence pursuant to the
formerly mandatory sentencing guidelines regime, in violation of
United States v. Booker, 125 S. Ct. 738 (2005). Castro’s
arguments that this error is either structural or presumptively
prejudicial are foreclosed. See United States v. Martinez-Lugo,
411 F.3d 597, 601 (5th Cir. 2005).
Sentencing a defendant pursuant to a mandatory guidelines
regime, standing alone, constitutes “Fanfan” error, and such an
error is “plain.” See id. at 601. Castro contends that this
error affected his substantial rights because the district court
sentenced him at the bottom of the guideline range and had no
discretion under the mandatory scheme to impose a lower sentence.
However, the court’s imposition of a sentence at the bottom of
the guideline range is, standing alone, no indication that the
sentencing judge would have reached a different conclusion under
an advisory scheme. See United States v. Bringier, 405 F.3d 310,
317-18 n.4 (5th Cir. 2005). There is no indication in the
record, either in the sentencing judge’s statements or otherwise,
that the district court would have imposed a different sentence
under an advisory guidelines scheme. Castro has not shown that
No. 05-40053
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the error affected his substantial rights and, thus, he has not
demonstrated plain error. See Martinez-Lugo, 411 F.3d at 601.
Castro also argues that, under Apprendi v. New Jersey, 530
U.S. 466 (2000), and its progeny, 8 U.S.C. § 1326(b) is
unconstitutional because it permits a sentencing judge to
increase a sentence beyond the statutory maximum based on a
factor that need not be submitted to a jury for proof or admitted
by the defendant. Castro concedes that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998), but he seeks to preserve the issue for possible
Supreme Court review. This court must follow Almendarez-Torres
“‘unless and until the Supreme Court itself determines to
overrule it.’” United States v. Izaguirre-Flores, 405 F.3d 270,
277-78 (5th Cir. 2005) (citation omitted).
AFFIRMED.