United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2006
Charles R. Fulbruge III
Clerk
No. 04-50424
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL OROPEZA-ANGELES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-544-1-AML
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Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Manuel Oropeza-Angeles (Oropeza) appeals from his 48-month
sentence and conviction following his guilty plea to illegal
reentry following deportation. 8 U.S.C. § 1326(a),(b). Oropeza’s
brief can be construed as challenging, for the first time on
appeal, the district court’s mandatory application of the
Sentencing Guidelines in violation of 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.
*
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opinion should not be published and is not precedent except under the limited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.
2005).
Fanfan error meets the first two prongs of the plain error
analysis. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733
(5th Cir.), cert. denied, 126 S. Ct. 267 (2005). Because Oropeza
has failed to demonstrate that the error affected the outcome in
the district court, his claim of Fanfan error does not warrant
relief. See id. at 733-34.
Oropeza’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Oropeza 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).
Oropeza concedes that his argument appears to be foreclosed by
Almendarez-Torres, but he also argues, for the first time on
appeal, that Almendarez-Torres is distinguishable because the
Supreme Court in Apprendi, 530 U.S. at 487-88, limited its holding
in Almendarez-Torres to cases in which the defendant specifically
admitted the predicate felony used to enhance his sentence. He
also argues, for the first time on appeal, that he did not admit to
the prior felony conviction and that the evidence was insufficient
at sentencing to support his enhanced sentence under § 1326(b).
2
Apprendi did not limit Almendarez-Torres’s holding to cases in
which the defendant admits having committed the predicate felony
prior to pleading guilty. See Apprendi, 530 U.S. at 487-90.
Oropeza has not demonstrated error, plain or otherwise.
AFFIRMED.
3