United States v. Rocha-Hernandez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005

Charles R. Fulbruge III
Clerk
No. 04-50452
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICENTE ROCHA-HERNANDEZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-646-ALL-HLH
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Vicente Rocha-Hernandez appeals the sentence imposed

following his guilty plea conviction for illegal reentry into

the United States following deportation. Rocha-Hernandez was

sentenced to a term of imprisonment of 57 months to be followed

by three years of non-reporting supervised release.

Rocha-Hernandez argues for the first time on appeal that in

light of United States v. Booker, 125 S. Ct. 738 (2005), the

district court plainly erred in sentencing him under a mandatory

*
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this opinion should not be published and is not precedent except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. 04-50452
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guideline system based on facts that were not admitted by Rocha

or found by a jury. He contends that the district court’s

comments at sentencing indicate that it would have imposed a

different sentence if it had sentenced him under an advisory

guideline scheme.

Rocha’s claim that the district court plainly erred by

enhancing his sentence based on facts not determined by a jury

and which he did not admit is unavailing because he failed to

show that “the sentencing judge--sentencing under an advisory

scheme rather then a mandatory one--would have reached a

significantly different result.” See United States v. Mares,

402 F.3d 511, 520-522 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517). His argument that the district

court’s application of the guidelines as mandatory was error also

fails because he did not show that the district court would have

imposed a different sentence had the guidelines been advisory

only. See United States v. Valenzuela-Quevedo, 407 F.3d 728,

732-34 (5th Cir. 2005).

Rocha concedes that the issue whether his sentence under

8 U.S.C. § 1326(b)(1) & (b)(2) was rendered unconstitutional by

Apprendi v. New Jersey, 530 U.S. 466 (2000), and subsequent

Supreme Court precedent is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), and he raises it solely

to preserve it for further review by the Supreme Court. Apprendi

did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at
 No. 04-50452
-3-

489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000). We therefore must follow Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

Dabeit, 231 F.3d at 984 (internal quotations and citation

omitted).

AFFIRMED.