United States v. Rodriguez-Falcon , 210 F. App'x 383 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2006
Charles R. Fulbruge III
Clerk
No. 05-41669
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL RODRIGUEZ-FALCON, also known as Manuel
Jesus Rodriguez-Falcon, also known as Manuel Rodriguez-Falcon,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-999-ALL
--------------------
Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Manuel Rodriguez-Falcon (Rodriguez) pleaded guilty
without a plea agreement to unlawfully attempting to enter the
United States following deportation. At sentencing, Rodriguez
received a 16-level sentencing enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(i) based on a previous Texas state conviction
for delivery of heroin and was sentenced to 60 months of
imprisonment. Rodriguez contends that the district court
committed reversible plain error when it enhanced his sentence
*
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this opinion should not be published and is not precedent except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. 05-41669
-2-
under § 2L1.2(b)(1)(A)(i). We reject the Government’s contention
that Rodriguez “invited,” and thus waived this argument. Defense
counsel’s remarks at sentencing did not rise to the level of a
concession that the enhancement was proper.
Under plain error review, “the defendant has the burden to
show that there is clear or obvious error and that it affects
substantial rights.” United States v. Alaniz-Alaniz, 38 F.3d
788, 791 (5th Cir. 1994). If the defendant carries that burden,
this court has the discretion to correct the error if it
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (quotation marks and citation
omitted).
In order to show that the enhancement of his sentence
affected his substantial rights, Rodriguez must have at least
argued that his prior conduct did not constitute drug
trafficking. See United States v. Ochoa-Cruz, 442 F.3d 865, 867
(5th Cir. 2006). Because he does not argue that the enhancement
under § 2L1.2(b)(1)(A)(i) was ultimately wrong, Rodriguez has not
shown plain error. Alaniz-Alaniz, 38 F.3d at 791.
Rodriguez also challenges the constitutionality of
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than as elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Rodriguez’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
No. 05-41669
-3-
523 U.S. 224, 235 (1998). Although Rodriguez 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). Rodriguez 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.