United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 29, 2005
Charles R. Fulbruge III
Clerk
No. 05-40128
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELEAZAR TOMAS MENDEZ,
also known as Antonio Rosales Jimenez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-455-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Eleazar Tomas Mendez pleaded guilty to unlawful presence in
the United States after deportation following an aggravated
felony conviction. He was sentenced to 33 months of imprisonment
and three years of supervised release. He appeals his conviction
and sentence.
For the first time on appeal, Mendez contends that he was
illegally sentenced pursuant to the formerly mandatory Sentencing
Guidelines regime, in violation of United States v. Booker, 125
*
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this opinion should not be published and is not precedent except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. 05-40128
-2-
S. Ct. 738 (2005). Mendez’s plea agreement contained a waiver-
of-appeal provision in which he waived, inter alia, “the right to
appeal the sentence imposed or the manner in which it was
determined,” except for a sentence above the statutory maximum or
an upward departure from the applicable Guidelines range. Mendez
contends that this waiver provision is not enforceable because,
at his rearraignment, the magistrate judge incorrectly told him
that he retained the right to appeal an “illegal sentence.” We
agree. Because the magistrate judge inaccurately described the
waiver provision, Mendez’s waiver cannot be deemed knowing and
voluntary with respect to an “illegal sentence.” See FED.
R. CRIM. P. 11(b)(1)(N); United States v. Robinson, 187 F.3d 516,
517 (5th Cir. 1999).
Mendez contends that this court should review his Booker
claim de novo and apply a harmless error standard. However, he
concedes that these arguments are foreclosed by United States v.
Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517), and that he must show plain error.
See id. at 520.
The district court’s application of the guidelines in their
mandatory form constituted error that is “plain.” Id. at 520-21.
However, as Mendez correctly concedes, he cannot establish that
the error “affected the outcome of the district court
proceedings[,]” i.e., “that the sentencing judge--sentencing
under an advisory scheme rather than a mandatory one--would have
No. 05-40128
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reached a significantly different result.” Id. at 521 (internal
quotation marks and citation omitted). Alternatively, Mendez
contends that the district court’s error, sentencing him under a
mandatory guidelines regime, was structural and that prejudice
should be presumed. Mendez correctly concedes that this argument
is foreclosed. See United States v. Malveaux, 411 F.3d 558, 560
n.9 (5th Cir. 2005), petition for cert. filed (July 11, 2005)
(No. 05-5297). Accordingly, Mendez has not satisfied the
requirements under the plain error standard.
Mendez also asserts, for the first time on appeal, that the
“felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b) are unconstitutional. As Mendez concedes, this
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998), which this court must follow "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)
(internal quotation marks and citation omitted), petition for
cert. filed (July 22, 2005)(No. 05-5469).
The conviction and sentence are AFFIRMED.