United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-41442
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BAIRON JESUS TROCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-497-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Bairon Jesus Trochez appeals his guilty plea conviction and
sentence for illegal reentry. For the first time on appeal,
Trochez argues that his sentence violates United States v.
Booker, 125 S. Ct. 738 (2005), insofar as he was sentenced under
the mandatory Sentencing Guideline regime, and that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Because of misstatements by the magistrate judge and the
*
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this opinion should not be published and is not precedent except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. 04-41442
-2-
district court regarding the scope of the sentence appeal waiver,
we pretermit the question whether this appeal is barred by the
waiver.
Trochez’s Booker claim fails because he cannot show that the
alleged error affected his substantial rights. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th
Cir.), cert. denied, 126 S. Ct. 267 (2005); United States v.
Mares, 402 F.3d 511, 521 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). The sentencing hearing transcripts are silent regarding
whether the district court would have reached a different
conclusion had the Guidelines been advisory. Moreover, the fact
that the district court imposed the minimum guideline sentence
is, standing alone, no indication that the court would have
reached a different conclusion under an advisory scheme. See
United States v. Bringier, 405 F.3d 310, 318 (5th Cir.), cert.
denied, 126 S. Ct. 264 (2005). Trochez therefore cannot carry
his burden of showing that the result likely would have been
different had he been sentenced under the advisory scheme, and he
cannot show plain error that affected his substantial rights.
See Mares, 402 F.3d at 522.
He argues for the first time on appeal that the sentencing
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi and Justice Thomas’s statements in his
concurrence to the opinion in Shepard v. United States, 125
S. Ct. 1254, 1263 (2005). Trochez acknowledges that his argument
No. 04-41442
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is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but he seeks to preserve the issue for Supreme Court
review. Apprendi and Shepard did not overrule Almendarez-Torres.
See Apprendi, 530 U.S. at 489-90; Shepard, 125 S. Ct. at 1262-63.
We must follow Almendarez-Torres “unless and until the Supreme
Court itself determines to overrule it.” United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (internal quotation
marks and citation omitted).
AFFIRMED.