United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-41370
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY CRUZ-BARRAZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-253-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Henry Cruz-Barraza appeals his guilty-plea conviction and
sentence for illegal reentry into the United States following
deportation after having been convicted of an aggravated felony
in violation of 8 U.S.C. § 1326(a) and (b). The Government has
moved to dismiss the appeal, arguing that the sentence appeal
waiver in Cruz-Barraza’s plea agreement bars his appeal.
Our review of the record indicates that, contrary to the
plea agreement, the magistrate judge and the district court
*
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this opinion should not be published and is not precedent except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. 04-41370
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advised Cruz-Barraza that he retained the right to appeal an
illegal sentence. Thus it cannot be said that Cruz-Barraza
knowingly and voluntarily waived his appeal rights.
Consequently, we hold that the appellate-waiver provision in
Cruz-Barraza’s plea agreement is unenforceable. The Government’s
motion to dismiss the appeal is DENIED.
Cruz-Barraza argues, for the first time, that his sentence
pursuant to a mandatory sentencing guidelines regime was
unconstitutional in light of United States v. Booker, 125 S. Ct.
738 (2005). The parties agree that plain error review applies.
The mandatory application of the guidelines is an error that
is plain. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733
(5th Cir.), cert. denied, 126 S. Ct. 267 (2005). To prevail,
however, Cruz-Barraza must show that his substantial rights have
been affected. Id. To meet this burden, he must establish that
the error “affected the outcome of the district court
proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725,
734 (1993)).
Nothing in the record indicates that the district court
would have imposed a lesser sentence had the guidelines been
advisory. Accordingly, Cruz-Barraza’s argument fails.
Cruz-Barraza next claims, for the first time, that the
felony and aggravated felony provisions of 8 U.S.C. § 1326(b) are
unconstitutional. Cruz-Barraza’s constitutional challenge to 8
U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United
No. 04-41370
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States, 523 U.S. 224, 235 (1998). Although Cruz-Barraza contends
that Almendarez-Torres was incorrectly decided and that a
majority of the Supreme Court would overrule Almendarez-Torres in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have
repeatedly rejected such arguments on the basis that Almendarez-
Torres remains binding. See United States v. Garza-Lopez, 410
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Cruz-Barraza properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but he raises
it here to preserve it for further review.
Cruz-Barraza has moved for leave to supplement the record on
appeal and to file a supplemental brief. In his supplemental
brief, Cruz-Barraza seeks to argue that the district court
plainly erred by applying a 16-level enhancement to his sentence
pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on his prior
conviction for burglary of a habitation.
Cruz-Barraza’s motion and supplemental brief contain new
arguments, raise new issues, do not supplement the initial brief
as contemplated by the rules, and are not reply briefs. See FED.
R. APP. P. 28(a), (c), (j); 5TH CIR. R. 28.5. Accordingly, they
would not properly supplement the record or briefs. Moreover,
because issues not raised in an appellant’s initial brief as
required by FED. R. APP. P. 28 are deemed waived, he has waived
the arguments raised in his motion and supplemental brief. See
No. 04-41370
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United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005).
Cruz-Barraza’s motions are DENIED.
Cruz-Barraza has failed to raise a meritorious issue on
appeal. Accordingly, the district court’s judgment is AFFIRMED.
AFFIRMED; MOTIONS DENIED.