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United States v. Aguilar-Hernandez , 157 F. App'x 755 ( 2005 )


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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                December 14, 2005
Charles R. Fulbruge III
Clerk
No. 05-40083
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO AGUILAR-HERNANDEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-495-ALL
--------------------
Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Ricardo Aguilar-Hernandez appeals the sentence imposed
following his guilty-plea conviction for being unlawfully present
in the United States after removal following a conviction for an
aggravated felony.   For the first time on appeal, Aguilar argues
that the district court committed reversible error under United
States v. Booker,
    125 S. Ct. 738
     (2005), by sentencing him
pursuant to a mandatory application of the sentencing guidelines.
Because Aguilar did not raise this issue below, we review it for
*
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this opinion should not be published and is not precedent except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. 05-40083
-2-
plain error only.   See United States v. Valenzuela-Quevedo,
    407 F.3d 728
    , 732 (5th Cir. 2005), cert. denied,
    126 S. Ct. 267
    (2005).
Aguilar argues that the district court’s mandatory
application of the sentencing guidelines was plainly erroneous
because the error was structural and because prejudice should
otherwise be presumed.   This court has rejected these arguments.
See United States v. Malveaux,
    411 F.3d 558
    , 560 n.9 (5th Cir.
2005), cert. denied,
    126 S. Ct. 194
     (2005).
Aguilar additionally asserts that he would have received a
lesser sentence under an advisory application of the guidelines
because the district court sentenced him at the low end of the
guidelines range.   The fact that Aguilar received the minimum
guidelines sentence is not sufficient to show plain error.      See
United States v. Bringier,
    405 F.3d 310
    , 317 & n.4 (5th Cir.),
cert. denied,
    126 S. Ct. 264
     (2005).   Aguilar “points to no
remarks made by the sentencing judge that raise a reasonable
probability that the judge would have imposed a different
sentence under an advisory scheme,” and we have not identified
any such remarks in the record.   United States v. Hernandez-
Gonzalez,
    405 F.3d 260
    , 262 (5th Cir.), cert. denied,
    126 S. Ct. 202
     (2005).   Accordingly, Aguilar has not shown that the district
court committed reversible plain error.   See
    id.
    Aguilar’s constitutional challenge to
    8 U.S.C. § 1326
    (b) is
foreclosed by Almendarez-Torres v. United States,
    523 U.S. 224
    ,
No. 05-40083
-3-
235 (1998).   Although Aguilar 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).   Aguilar 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.