United States v. Castro-Gonzalez , 168 F. App'x 667 ( 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 24, 2006
Charles R. Fulbruge III
Clerk
No. 04-41712
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALFREDO CASTRO-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-337-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Alfredo Castro-Gonzales (Castro) was convicted of
illegal reentry following deportation. He argues on appeal that,
in light of United States v. Booker, 543 U.S. 220 (2005), the
district court erred by sentencing him under mandatory Sentencing
Guidelines. He also argues that 8 U.S.C. § 1326(b) is
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000).
*
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this opinion should not be published and is not precedent except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. 04-41712
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We review Castro’s first argument for plain error. See
United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). The district court’s application
of the guidelines in their mandatory form constituted error that
is plain. See United States v. Valenzuela-Quevedo, 407 F.3d 728,
733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005). Castro
concedes that he cannot meet the third prong of plain-error
analysis, as a review of the record gives no indication that the
judge would have sentenced him any differently had he known the
guidelines were only advisory. See Mares, 402 F.3d at 522.
Castro also concedes that this court has rejected his argument
that the application of mandatory guidelines is a structural
error or is presumptively prejudicial. See United States v.
Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126 S.
Ct. 194 (2005). He nevertheless raises these arguments to
preserve them for further review.
Castro’s constitutional challenge to § 1326(b) is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Castro 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). Castro
properly concedes that his argument is foreclosed in light of
No. 04-41712
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Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
Accordingly, the judgment of the district court is AFFIRMED.