United States v. Davinson-Canales , 145 F. App'x 58 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
05IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-40883
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELMER IVAN GARTH DAVINSON-CANALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-207-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Elmer Ivan Davinson-Canales appeals his sentence imposed
following his guilty plea conviction for illegal reentry
following deportation. He argues that, if Almendarez-Torres v.
United States, 523 U.S. 224 (1998) is overruled, his sentence
imposed under 8 U.S.C. § 1326(b) would be unconstitutional and he
would be entitled to be resentenced to the penalty for a lesser
included offense. Davinson correctly acknowledges that
Almendarez-Torres has not been overruled and that this argument
*
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this opinion should not be published and is not precedent except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. 04-40883
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is foreclosed, but he seeks to preserve the issue for possible
Supreme Court review. See Almendarez-Torres, 523 U.S. at 247
(1998); Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000);
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Davinson next asserts that he should be resentenced in light
of United States v. Booker, 125 S. Ct. 738 (2005) because he was
sentenced under the mandatory guideline system. He concedes that
his argument is subject to plain error review, but contends that
he is not required to show prejudice because the error was
structural and insusceptible of harmless error analysis.
This court has rejected Davinson’s argument that a Booker
error or the application of the then mandatory guidelines is a
structural error or is presumptively prejudicial. See United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517); see also United States
v. Malveaux, 411 F.3d 560-61 n.9 (5th Cir. 2005), petition for
cert. filed (July 11, 2005) (No. 05-5297). We review for plain
error. United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33
(5th Cir. 2005), petition for cert. filed (July 25, 2005) (No.
05-5556). The “application of the Guidelines in their mandatory
form constitutes error that is plain.” Id. at 733. To
demonstrate an effect on his substantial rights, Davinson bears
the burden of showing that the plain error he has identified
“‘affected the outcome of the district court proceedings.’” Id.
(quoting United States v. Olano, 507 U.S. 724, 734 (1993)).
No. 04-40883
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Davinson has not pointed to anything in the record
indicating that the district court would have imposed a lesser
sentence under an advisory scheme. See Mares, 402 F.3d at 521.
He has thus failed to demonstrate that his substantial rights
were affected, and his sentence is AFFIRMED.