United States v. Armendariz

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 28, 2005

Charles R. Fulbruge III
Clerk
No. 04-50812
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

RICARDO ARMENDARIZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-269-ALL-PRM)
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Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Ricardo Armendariz pleaded guilty to the

first and second counts of an indictment charging him with

importation of a controlled substance and possession of a

controlled substance. The probation officer determined that

Armendariz was a career offender for purposes of U.S.S.G. §

4B1.1(a) & (b) (2003). Armendariz’s objection, based on Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), was overruled,

and he was sentenced to concurrent 84-month terms of imprisonment

as well as concurrent four-year periods of supervised release.

*
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this opinion should not be published and is not precedent except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.
After Armendarez filed his initial brief but before the

government submitted its brief, the Supreme Court issued its

decision in United States v. Booker, 125 S. Ct. 738 (2005),

applying its Sixth Amendment holding in Blakely to the United

States Sentencing Guidelines (“U.S.S.G.”). Armendariz contends

that, under Blakely and Booker, the district court erred by

increasing his guideline sentencing range on the basis of facts

neither admitted by him as part of his guilty plea nor found by a

jury beyond a reasonable doubt. Armendariz argues that, in

determining that he was a “career offender,” the district court was

required to find that: (1) he was at least 18 years old at the time

of the instant offense; and (2) he had at least two prior

controlled-substance convictions.

Although Armendariz preserved error as to the determination of

the first of these facts, any error in determining that Armendariz

was older than 18 at the time of the instant offense was harmless.

See United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005)

(indicating that factual question of defendant’s age implicates

rule in Booker); see also United States v. Piniero, 410 F.3d 282,

284–85 (5th Cir. 2005) (reviewing Booker issue for harmless error).

Armendariz admitted at the change-of-plea hearing, on March 24,

2004, that he was 41 years old. The instant offense was committed

on January 16, 2004. Armendariz necessarily had to have been older

than 18 years old on that date.

2
Armendariz did not preserve error as to the question whether

the district court erred in finding that his predicate convictions

were controlled-substance offenses. Even if we assume arguendo

that the district court plainly erred in making this determination,

see Guevara, 408 F.3d at 261 (question is undecided), Armendariz

cannot show that his substantial rights were affected: The record

contains no indication whatsoever that the district court would

have sentenced Armendariz differently under an advisory sentencing

scheme. See United States v. Mares, 402 F.3d 511, 521 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005). The judgment of the district

court is, in all respects,

AFFIRMED.