United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 6, 2006
Charles R. Fulbruge III
Clerk
No. 04-20701
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
FRANCISCO ARRIOLA-CARDONA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-90-ALL
Before JONES, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Francisco Arriola-Cardona (Arriola) was convicted by
guilty plea of unlawful presence in the United States after removal
subsequent to an aggravated felony conviction. Over Arriola’s
objection, the district court adjusted his base offense level
upward by eight levels because Arriola’s prior theft conviction was
an aggravated felony. The resulting guidelines sentencing range
was eighteen to twenty-four months. The district court rejected
Arriola’s request that his sentence contain a “credit” for time
*
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opinion should not be published and is not precedent except under the limited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.
spent in custody by immigration authorities, saying, “I can’t give
him credit.” The court did sentence Arriola to eighteen months,
the bottom of the Guidelines range. Arriola appeals only his
sentence.
Aggravated Felony
Arriola argues that his prior theft conviction does not
qualify as an aggravated felony under the Guidelines because his
original two-year sentence was probated and his sentence upon
revocation of probation was less than one year. As Arriola raised
this argument in the district court, our review of the district
court’s application of the Guidelines is de novo. United States v.
Charon, 442 F.3d 881, 887 (5th Cir. 2006).
Section 2L1.2(b)(1)(C) provides for an eight-level
increase in offense level if the defendant has a prior conviction
for an aggravated felony. The commentary to § 2L1.2 adopts the
definition of “aggravated felony” set forth in 8 U.S.C.
§ 1101(a)(43). See § 2L1.2, comment (n.2). Section § 1101(a)(43)(G)
defines “aggravated felony” to include “a theft offense . . . for
which the term of imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(G). The phrase “term of imprisonment” refers to “the
period of incarceration or confinement ordered by a court of law
regardless of any suspension of the imposition or execution of that
imprisonment.” Id. § 1101(a)(48)(B).
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We distinguish situations in which a court sentences a
defendant directly to probation and situations like the one in this
case, in which the court has sentenced the defendant to a period of
incarceration and then suspended it in favor of probation. See
United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir.
2001). Arriola argues that, because his sentence after revocation
of probation was only seven months, his original sentence of two
years’ imprisonment, probated for five years, was not “at least one
year” as required by § 1101(a)(43)(G). We rejected this argument
in an unpublished opinion directly on point, United States v.
Retta-Hernandez, 106 F. App’x 879, 880-83 (5th Cir. 2004).
Arriola concedes that his prior conviction would be an
aggravated felony under Retta-Hernandez. He argues that Retta-
Hernandez was wrongly decided and points out that, as an unpub-
lished opinion, it is not precedential. We nonetheless find the
reasoning of Retta-Hernandez persuasive, see 5TH CIR. R. 47.5.4, and
decline to reach a contrary result.
Constitutionality of 8 U.S.C. § 1346(a) and (b)
Arriola argues that 8 U.S.C. § 1326 is facially
unconstitutional because it treats prior felony and aggravated
felony convictions as sentencing factors rather than as elements of
the offense that must be found by a jury. This challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
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(1998), by which we are bound. United States v. Garza-Lopez, 410
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Fanfan Error
Arriola was sentenced before the decision in United
States v. Booker, 543 U.S. 220 (2005), and the district court
imposed sentence under the then-mandatory Sentencing Guidelines.
Arriola’s initial brief, filed prior to the issuance of Booker,
raised no challenge to the constitutionality of the Sentencing
Guidelines. In a supplemental letter brief, Arriola argued that
the district court erred in sentencing him pursuant to a mandatory
guidelines scheme. He conceded that, because he had not objected
to the constitutionality of the Guidelines in district court, the
plain error standard of review applied to his argument. In his
reply brief, Arriola asserted that his concession of plain error
review was improvident based on an objection he raised in district
court.
Imposition of a sentence pursuant to a mandatory
application of the Sentencing Guidelines constitutes “Fanfan”
error. United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th
Cir.), cert. denied, 126 S. Ct. 464 (2005); see United States v.
Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (discussing difference
between Booker and Fanfan error). We have rejected Arriola’s
argument that Fanfan error is structural and presumptively
prejudicial. United States v. Malveaux, 411 F.3d 558, 561 & n.9
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(5th Cir.), cert. denied, 126 S. Ct. 194 (2005). If Fanfan error
“is preserved in the district court by an objection,” the burden is
on the Government to show that the error was harmless. United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005). Unpreserved claims of Fanfan error
are reviewed for plain error only, in which case the burden is on
Arriola to show that the error was plain and affected his
substantial rights. Id.
In initial objections to the PSR, Arriola argued that his
prior theft conviction was not an aggravated felony “under the
current, unconstitutional scheme.” In a footnote, defense counsel
observed:
Despite the Fifth Circuit’s recent holding in [United
States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), vacated,
543 U.S. 1101 (2005)] that the Supreme Court’s decision
in Blakely v. Washington, 542 U.S. 296 (2004), does not
impact the constitutionality of the federal guidelines,
counsel suspects that the guidelines are doomed.
This remark was not repeated in Arriola’s objections to the revised
PSR, nor did counsel or the district court mention Blakely during
sentencing.
Under RULE 51(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, “[a]
party may preserve a claim of error by informing the court — when
the court ruling or order is made or sought — of the action the
party wishes the court to take, or the party’s objection to the
court’s action and the grounds for that objection.” Arriola
asserts that his references to an “unconstitutional scheme” and to
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the Guidelines being “doomed” preserved Fanfan error. We do not
consider such oblique references to be an “objection” putting the
district court on notice that a ruling was required. We therefore
review for plain error.
Plain error is “(1) error, (2) that is plain, and
(3) that affects substantial rights.” Valenzuela-Quevedo, 407 F.3d
at 732 (internal quotation marks and citation omitted). If these
three conditions are met, we may exercise our discretion to notice
the error, but only if “(4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Id. (internal quotation marks and citation omitted).
Arriola’s Fanfan error satisfies the first two prongs of
the standard by being both “plain” and “error.” To show an effect
on his substantial rights, Arriola must show that the error
“affected the outcome of the district court proceedings.” Id. at
733 (internal quotation marks and citation omitted). Arriola must
identify “statements in the record by the sentencing judge
demonstrating a likelihood that the judge, sentencing under an
advisory scheme rather than a mandatory one, would have reached a
significantly different result.” United States v. Pennell, 409
F.3d 240, 245 (5th Cir. 2005).
The district court stated that it had chosen a sentence
“at the low end [of the Guidelines] instead of the middle as
recommended” by the probation officer because it could not give
Arriola credit for time in immigration custody. A sentence at the
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low end of the Guidelines, without more, is insufficient to show
that Fanfan error affected a defendant’s substantial rights. See
United States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.), cert.
denied, 126 S. Ct. 264 (2005) (discussing Sixth Amendment Booker
error). Nothing in the record indicates that the district court
would have imposed a different sentence under an advisory
guidelines scheme. Therefore, Arriola has failed to show that the
district court’s Fanfan error affected his substantial rights, and
he cannot establish plain error.
The district court’s judgment is AFFIRMED.
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