United States v. Guardado , 135 F. App'x 727 ( 2005 )

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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                  June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-11059
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS ALEXANDER GUARDADO, also known as Samuel Ruiz,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:04-CR-11-ALL
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Douglas Alexander Guardado pleaded guilty to illegal reentry
after deportation and was sentenced to 87 months of imprisonment
and three years of supervised release.   He appeals his sentence.
Guardado argues for the first time on appeal that his
constitutional rights to grand jury indictment, proof beyond a
reasonable doubt, and jury trial were violated when he was
sentenced on the basis of facts beyond the fact of a prior
conviction.    He argues that under Blakely v. Washington,
*
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this opinion should not be published and is not precedent except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. 04-11059
-2-

124 S. Ct. 2531

, 2537 (2004), the district court plainly erred in
increasing his criminal history score based on its finding that
he was under a sentence of parole and under a sentence of
probation at the time of the commission of the instant offense.
He concedes that because he did not object on Blakely grounds in
the district court, his claim must be reviewed for plain error.
He contends that the error was plain and that his substantial
rights were affected.
Guardado’s claim that the district court plainly erred by
increasing 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 than a mandatory one--would have reached a
significantly different result.”   See United States v. Mares,

402 F.3d 511

, 521 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517).
Guardado concedes that the issue whether his sentence under
8 U.S.C. § 1326(b)(2) was rendered illegal 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 489-90

;
As Guardado concedes, this argument is foreclosed unless and
No. 04-11059
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until the Supreme Court itself decides to overrule Almendarez-
Torres.   See

Apprendi, 530 U.S. at 489-90