United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 04-40862
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL GUEL-ESCOBEDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1913-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Gabriel Guel-Escobedo appeals from his guilty-plea
conviction for reentry of a deported alien. For the first time
on appeal, Guel-Escobedo 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.
*
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this opinion should not be published and is not precedent except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. 04-40862
-2-
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 Guel-Escobedo 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.
Guel-Escobedo’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Guel-Escobedo 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). Guel-Escobedo 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.