United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-40125
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO TOVAR-AVILA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:03-CR-1299-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alejandro Tovar-Avila appeals his conviction and sentence for
possession with the intent to distribute more than five kilograms
of cocaine, in violation of 21 U.S.C. § 841. Tovar contends his
sentence is unconstitutional in the light of United States v.
Booker, 125 S. Ct. 738 (2005), because he was sentenced under a
mandatory guidelines scheme. He contends that a lesser sentence
would have been imposed in the absence of mandatory guidelines.
*
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this opinion should not be published and is not precedent except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.
As Tovar concedes, we review only for plain error. United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005),
cert. denied, 2005 WL 1811485 (U.S. 3 Oct. 2005) (No. 05-5556);
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert.
denied, 2005 WL 816208 (U.S. 3 Oct. 2005) (No. 04-9517). Under our
plain error review, a “clear” or “obvious” error must affect
“substantial rights”; even then, the “decision to correct the
forfeited error [remains] within the sound discretion of the court
of appeals”. United States v. Olano, 507 U.S. 725, 732-35 (1993).
The district court committed error that is plain by sentencing
Tovar under a mandatory sentencing guidelines scheme.
Valenzuela-Quevedo, 407 F.3d at 733. However, Tovar fails to meet
his burden of showing this error affected his substantial rights.
Mares, 402 F.3d at 520. The district court made no comments
suggesting it would have imposed a lesser sentence in the absence
of mandatory guidelines. See United States v. Bringier, 405 F.3d
310, 317 (5th Cir. 2005) (stating the issue as “whether [the
defendant] has demonstrated that the sentencing judge would have
reached a different result had it sentenced [the defendant] under
an advisory scheme rather than a mandatory one”), cert. denied,
2005 WL 1801192 (U.S. 3 Oct. 2005) (No. 05-5535). Therefore, Tovar
fails to demonstrate plain error.
Tovar contends for the first time on appeal that the statute
under which he was convicted, 21 U.S.C. § 841, is unconstitutional
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under Apprendi v. New Jersey. 530 U.S. 466, 490 (2000) (holding
that any fact other than a prior conviction may not be used to
enhance a defendant’s sentence beyond the statutory maximum unless
it is submitted to a jury and proved beyond a reasonable doubt).
As he concedes, however, this issue is foreclosed. United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532
U.S. 1045 (2001). Tovar raises it only to preserve it for further
possible review.
Tovar also maintains that, pursuant to Apprendi, the
Government was required, but did not, prove to the jury beyond a
reasonable doubt he knew that he possessed the particular type and
quantity of controlled substance at issue in this case. As he
concedes, this contention is foreclosed by United States v.
Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir.), cert. denied, 538
U.S. 1068 (2003), which held that knowledge of the drug type and
quantity is not an element of the offense. He raises the issue
only to preserve it for possible review.
AFFIRMED
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