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United States v. Monoto , 162 F. App'x 377 ( 2006 )


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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                     January 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-41620
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO MONOTO, also known as Luis Vasquez-Perez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(1:04-CR-577-ALL)
--------------------
Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Roberto Monoto appeals from his guilty-
plea conviction and sentence for illegally re-entering the United
States after a previous deportation.           Monoto was sentenced to 63
months in prison and three years of supervised release.             Monoto’s
claims are not barred by his plea agreement.
For   the   first   time   on   appeal,   Monoto   contends   that    his
sentence should be vacated because it was imposed pursuant to an
unconstitutional mandatory guidelines system, contrary to            Booker.
This is an alleged Fanfan-type error.              See United States v.
*
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this opinion should not be published and is not precedent except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.
Martinez-Lugo,
    411 F.3d 597
    , 600 (5th Cir.), cert. denied,
    126 S. Ct. 464
     (2005).     Our 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,” Monoto cannot carry his burden of showing
that the Fanfan error affected her 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 Monoto’s 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).   We have rejected contentions like the one Monoto advances
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.    See United States v. Malveaux,
    411 F.3d 558
    , 561 n.9 (5th Cir.), cert. denied,
    126 S. Ct. 194
     (2005).
Monoto’s challenge to the constitutionality of
    8 U.S.C. § 1326
    (a) and (b) is foreclosed by Almendarez-Torres v. United
States,
    523 U.S. 224
    , 235 (1998).     Although Monoto 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 contentions on the basis that Almendarez-Torres
2
remains binding.   See United States v. Garza-Lopez,
    410 F.3d 268
    ,
276 (5th Cir.), cert. denied,
    126 S. Ct. 298
     (2005).       Monoto
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.
Monoto’s conviction and sentence are AFFIRMED.
3