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United States v. Gonsalez-Vera , 170 F. App'x 331 ( 2006 )


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  •                                                              United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                       March 8, 2006
Charles R. Fulbruge III
Clerk
No. 04-41626
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO GONSALEZ-VERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-569-ALL
--------------------
Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Mauricio Gonsalez-Vera appeals his conviction and sentence for
illegal reentry.      He argues for the first time on appeal that
(1) he was illegally sentenced under the mandatory Sentencing
Guidelines regime held unconstitutional in United States v. Booker,
    125 S. Ct. 738
     (2005), and (2) pursuant to Apprendi v. New Jersey,
    530 U.S. 466
     (2000), that
    8 U.S.C. § 1326
    (b)(1) and (2) are
unconstitutional.
Gonsalez’s     appeal    waiver   is   unenforceable     because      the
*
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opinion should not be published and is not precedent except under the limited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.
magistrate judge advised him at his rearraignment hearing that he
could appeal an illegal sentence.          See, e.g., United States v.
Robinson,
    187 F.3d 516
    , 517-18 (5th Cir. 1999).           We do not decide
the applicability of the sentencing waiver because the appellate
issues lack arguable merit and are foreclosed.
Gonsalez’s Booker claim fails because the alleged Fanfan error
is neither structural nor presumptively prejudicial, and he cannot
show that it affected his substantial rights. See United States v.
Martinez-Lugo,
    411 F.3d 597
    , 601 (5th Cir.), cert. denied,
    126 S. Ct. 464
     (2005); United States v. Valenzuela-Quevedo,
    407 F.3d 728
    ,
732-33 (5th Cir.), cert. denied,
    126 S. Ct. 267
     (2005); United
States v. Mares,
    402 F.3d 511
    , 521 (5th Cir.), cert. denied,
    126 S. Ct. 43
     (2005).    The sentencing and revocation hearing transcripts
are silent regarding whether the district would have reached a
different conclusion had the Guidelines been advisory, and the fact
that the district court imposed the minimum sentence under the
Guidelines is, standing alone, no indication that the court would
have reached a different conclusion under an advisory scheme.           See
United States v. Bringier,
    405 F.3d 310
    , 317 n.4 (5th Cir.), cert.
denied, 126 S. Ct 264 (2005).    Gonsalez therefore cannot carry his
burden of showing that the result likely would have been different
had he been sentenced under the advisory scheme, and he cannot show
plain error.     See Mares,
    402 F.3d at 522
    .
Gonsalez’s     constitutional       challenge   is    foreclosed    by
Almendarez-Torres v. United States,
    523 U.S. 224
    , 235 (1998).
2
Although Gonsalez contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, 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).   Gonsalez 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.
AFFIRMED.
3