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. 04-41680
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONEL ESTRADA-ZAMORA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-612-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Leonel Estrada-Zamora (Estrada) appeals his 46-month
sentence following his guilty plea conviction of illegal reentry,
in violation of 8 U.S.C. § 1326. Estrada argues for the first
time on appeal that the district court erred in imposing a
sentence under a mandatory guideline scheme, in violation of
United States v. Booker, 543 U.S. 220 (2005). Assuming arguendo
that the written plea agreement does not foreclose review of this
argument, we review it for plain error. See United States v.
*
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this opinion should not be published and is not precedent except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. 04-41680
-2-
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005); United States v. Mares, 402 F.3d
511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). Estrada
concedes that he cannot demonstrate that the district court would
likely have sentenced him differently under an advisory
sentencing scheme. His argument that this error is structural,
or at least presumptively prejudicial, is foreclosed, see United
States v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir.), cert.
denied, 126 S. Ct. 464 (2005), and his argument that we require
proof by a preponderance of the evidence that this error affected
his substantial rights lacks merit. See Mares, 402 F.3d at 521;
Martinez-Lugo, 411 F.3d at 601.
Estrada’s constitutional challenge to § 1326 is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Estrada 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). Estrada 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.
AFFIRMED.