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. 05-40176
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS MORALES-CORDOVA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-735-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Luis Morales-Cordova appeals his sentence under 8 U.S.C.
§ 1326(a) and (b) for illegal reentry into the United States
after having been deported following conviction for an aggravated
felony. The plea agreement between Morales-Cordova and the
Government contains waiver language that may preclude appeal of
his sentence. However, because Morales-Cordova cannot succeed on
the merits of his claims, it is not necessary to resolve the
waiver issue.
*
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this opinion should not be published and is not precedent except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. 05-40176
-2-
For the first time on appeal, Morales-Cordova asserts that
the district court’s belief during sentencing that the United
States Sentencing Guidelines were mandatory, rather than
advisory, is reversible error under United States v. Booker,
125 S. Ct. 738 (2005). He asserts that the error is structural,
or at least presumptively prejudicial.
We review for plain error. See United States v. Valenzuela-
Quevedo, 407 F.3d 728, 732 (5th. Cir.), cert. denied, 126 S. Ct.
267 (2005). The error is not structural, and prejudice is not
presumed. United States v. Martinez-Lugo, 411 F.3d 597, 600-01
(5th Cir. 2005), cert. denied, ___ S. Ct. ___ (Oct. 11, 2005)
(No. 05-6242).
In the alternative, Morales-Cordova asserts that he is
entitled to reversal even under the plain error standard.
However, he has failed to establish that the error affected his
substantial rights. Although the district court sentenced him at
the bottom of the applicable sentencing range, the court denied
his request for a downward departure, and there is no indication
that the judge would have issued a lesser sentence but for the
mandatory Sentencing Guidelines. See United States v. Bringier,
405 F.3d 310, 317 n.4 (5th Cir.), cert. denied, 126 S. Ct. 264
(2005); United States v. Garcia-Rodriguez, 415 F.3d 452, 456 (5th
Cir. 2005), petition for cert. filed (U.S. Sept. 27, 2005) (No.
05-6912). Therefore, he cannot demonstrate plain error.
No. 05-40176
-3-
Finally, Morales-Cordova asserts that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional. The Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
controls this issue. We must follow Almendarez-Torres unless the
Supreme Court overrules it. United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000). Accordingly, this issue is foreclosed.
The judgment of the district court is AFFIRMED.