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. 04-41603
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALBERTO GUEVARA, also known as Marco Antonio
Buchid-Villanueva,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-568-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Luis Alberto Guevara appeals his guilty-plea conviction and
sentence for being an alien found unlawfully present in the
United States after deportation and following a conviction for
an aggravated felony offense. He contends for the first time on
appeal that his sentence violates United States v. Booker, 543
U.S. 220 (2005), because it was imposed pursuant to a mandatory
guidelines scheme, and that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
*
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this opinion should not be published and is not precedent except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. 04-41603
-2-
The Government seeks to enforce the waiver-of-appeal
provision in Guevara’s plea agreement. Due to a difference
between the written terms of the waiver-of-appeal provision and
statements by the district court regarding the scope of this
waiver, we decline to enforce it and proceed to the merits of
Guevara’s appeal.
Because Guevara did not preserve his claims before the
district court, we review only for plain error. See United
States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126
S. Ct. 43 (2005). Guevara’s Booker claim fails because he has
not shown that any error affected his substantial rights.
See United States v. Pennell, 409 F.3d 240, 245 (5th Cir. 2005);
Mares, 402 F.3d at 521. The fact that Guevara was sentenced at
the lowest end of the guidelines range does not indicate that his
sentence would likely have been different under advisory
Guidelines. See United States v. Bringier, 405 F.3d 310, 317-18
& n.4. (5th Cir. 2005), cert. denied, 126 S. Ct. 264 (2005).
Additionally, his contention that the district court’s error is
structural and that prejudice should be presumed is without
merit. See United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th
Cir. 2005), cert. denied, 126 S. Ct. 194 (2005). Because he has
not established plain error, Guevara’s sentence is affirmed.
Guevara’s constitutional challenge to the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2)
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
No. 04-41603
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224, 235 (1998). Although Guevara 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). Guevara
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 AFFIRMED.