United States v. Ruiz-Rosas , 168 F. App'x 645 ( 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. 05-40133
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL RUIZ-ROSAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-653-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Angel Ruiz-Rosas pleaded guilty to a one-count indictment
charging him with being found in the United States following
deportation. The district court sentenced Ruiz-Rosas to 57
months in prison and a two-year term of supervised release.
Ruiz-Rosas’s plea agreement explicitly waived his “right to have
facts that the law makes essential to the punishment” charged in
the indictment or proved beyond a reasonable doubt and granted
his consent to be sentenced pursuant to the Guidelines. We need
*
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this opinion should not be published and is not precedent except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. 05-40133
-2-
not decide the applicability of the waiver in this case because
the issues that Ruiz-Rosas raises are either foreclosed or lack
arguable merit.
Ruiz-Rosas argues for the first time on appeal that his
sentence was imposed illegally in light of United States v.
Booker, 543 U.S. 220 (2005). This court’s review is for plain
error. See 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, 520 (5th Cir.), cert. denied, 126
S. Ct. 43 (2005).
After Booker, “[i]t is clear that application of the
Guidelines in their mandatory form constitutes error that is
plain.” Valenzuela-Quevedo, 407 F.3d at 733. To satisfy the
plain error test in light of Booker, Ruiz-Rosas must demonstrate
that his substantial rights were affected by the error. United
States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005). There is
nothing in the record indicating that the district court would
have imposed a different sentence under an advisory sentencing
guidelines scheme. United States v. Bringier, 405 F.3d 310, 317
n.4 (5th Cir.), cert. denied, 126 S. Ct. 264 (2005). Ruiz-Rosas
argues that application of the plain error standard is contrary
to the plain error standard enunciated in United States v.
Dominguez Benitez, 542 U.S. 74 (2004). Ruiz-Rosas’s challenge to
the showing required under Mares and Bringier is unavailing as
one panel may not overrule the decision of a prior panel absent
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en banc reconsideration or a superseding contrary decision of the
Supreme Court. See United States v. Eastland, 989 F.2d 760, 768
n.16 (5th Cir. 1993). Accordingly, there is no basis for
concluding that the district court would have imposed a lower
sentence under an advisory sentencing regime. See Mares, 402
F.3d at 522.
Ruiz-Rosas’s constitutional challenge to 8 U.S.C. § 1326(b)
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Ruiz-Rosas 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). Ruiz-Rosas 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.