United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41663
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE ALBERTO GARCIA-MEJIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-704
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Rene Alberto Garcia-Mejia appeals from his guilty-plea
conviction for being found in the United States after previous
deportation. For the first time on appeal, Garcia-Mejia argues
that the district court erred by sentencing him under the
mandatory sentencing scheme held unconstitutional in United
States v. Booker, 543 U.S. 220 (2005), an argument that has been
termed “Fanfan error.” United States v. Walters, 418 F.3d 461,
463 (5th Cir. 2005). He also contends that Fanfan error is
structural in nature. We need not decide the applicability of
*
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this opinion should not be published and is not precedent except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. 04-41663
-2-
the waiver provision in this case because the issues that Garcia-
Mejia raises are either foreclosed or lack arguable merit.
Fanfan error meets the first two prongs of the plain error
analysis but is not structural in nature. United States v.
Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert. denied, 126
S. Ct. 464 (2005). Because Garcia-Mejia has failed to
demonstrate that the sentencing judge would have reached a
different result if an advisory sentencing scheme had been
utilized, his claim of Fanfan error does not warrant relief. See
id. at 601.
Garcia-Mejia also argues that 8 U.S.C. § 1326(b)(1) and
(b)(2) are unconstitutional. Garcia-Mejia’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Garcia-Mejia 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). Garcia-
Mejia 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.
Accordingly, the district court’s judgment is AFFIRMED.