United States v. Paredes-Garcia , 169 F. App'x 187 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40151
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE PAREDES-GARCIA, also known as Jose Plarales,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-744-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Paredes-Garcia (Paredes) appeals his guilty-plea
conviction and sentence for illegally reentering the United
States after a previous deportation, in violation of 8 U.S.C.
§ 1326. Paredes was sentenced to 41 months in prison and two
years of supervised release. We need not decide whether
Paredes’s appeal is barred by his plea agreement because his
issues are either foreclosed or lack arguable merit.
For the first time on appeal, Paredes contends that his
sentence should be vacated because it was imposed pursuant to an
*
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this opinion should not be published and is not precedent except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. 05-40151
-2-
unconstitutional mandatory sentencing guidelines regime, contrary
to United States v. Booker, 543 U.S. 220 (2005). This is an
alleged “Fanfan” error. See United States v. Martinez-Lugo, 411
F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005).
This court’s review is for plain error. See id.; United States
v. Mares, 402 F.3d 511, 520-21 (5th Cir.), cert. denied, 126
S. Ct. 43 (2005).
Although the application of a mandatory guidelines regime
was error that was “plain,” Paredes concedes that he cannot carry
his burden of showing that the “Fanfan” error affected his
sentence. See Martinez-Lugo, 411 F.3d at 600. There is nothing
in the record to suggest that the district court felt constrained
by the mandatory Guidelines in imposing the sentence. See Mares,
402 F.3d at 522; see also United States v. Bringier, 405 F.3d
310, 317 n.4 (5th Cir.) (minimum guideline sentence, without
more, insufficient to carry third prong of plain-error test),
cert. denied, 126 S. Ct. 264 (2005). Insofar as Paredes argues
that the error was a “structural” one that affected the entire
“framework” of the proceeding against him, and that plain-error
prejudice should be presumed, we have rejected such contentions.
See United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.),
cert. denied, 126 S. Ct. 194 (2005). Paredes raises the “Fanfan”
claim only to preserve it for further review.
Paredes’s challenge to the constitutionality of § 1326(a)
and (b) is foreclosed by Almendarez-Torres v. United States, 523
No. 05-40151
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U.S. 224, 235 (1998). Although Paredes 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). Paredes
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.
The district court’s judgment is AFFIRMED.