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. 04-41761
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FILEMON SANCHEZ-VALDIVIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-705-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Filemon Sanchez-Valdivia (Sanchez) appeals his sentence
for illegal reentry after being deported subsequent to an
aggravated felony conviction. For the first time on appeal,
Sanchez asserts that the district court’s belief during
sentencing that the Federal Sentencing Guidelines were mandatory,
rather than advisory, is reversible error under United States v.
Booker, 543 U.S. 220 (2005). Sanchez also asserts that the
“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
are unconstitutional. 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this opinion should not be published and is not precedent except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. 04-41761
-2-
the waiver provision in this case because the issues that Sanchez
raises lack arguable merit or are foreclosed.
We review Sanchez’s Booker-based challenge for plain error.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th.
Cir.), cert. denied, 126 S. Ct. 267 (2005). Sanchez has failed
to establish that the error affected his substantial rights. See
United States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.),
cert. denied, 126 S. Ct. 264 (2005). Therefore, he cannot
demonstrate plain error.
Sanchez’s constitutional challenge to 8 U.S.C. § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Sanchez 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). Sanchez 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.
The judgment of the district court is thus AFFIRMED.