United States v. Grijalba-Celis , 156 F. App'x 720 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 13, 2005
Charles R. Fulbruge III
Clerk
No. 04-41391
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GRIJALBA-CELIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-701-ALL
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Carlos Grijalba-Celis (Grijalba) appeals his conviction and
the sentence he received after he pleaded guilty to illegal
reentry in violation of 8 U.S.C. § 1326. Grijalba argues that
the “felony” and “aggravated felony” provisions in 8 U.S.C.
§ 1326(b)(1) and (b)(2) are unconstitutional in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). As Grijalba
concedes, this argument is foreclosed. See Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998); 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this opinion should not be published and is not precedent except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.
No. 04-41391
-2-
Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.), cert. denied,
126 S. Ct. 253 (2005).
Grijalba also argues, for the first time on appeal, that the
district court erred by imposing a sentence pursuant to the
mandatory Sentencing Guidelines system held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005). Because the
district court erred in sentencing Grijalba pursuant to a
mandatory Guidelines scheme, he meets the first two requirements
for relief under plain error review. See United States v. Olano,
507 U.S. 725, 731-37 (1993); United States v. Valenzuela-Quevedo,
407 F.3d 728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267(2005). The Government concedes that Grijalba can satisfy the
third prong of plain error by showing that the district court
felt constrained by the Sentencing Guidelines and most likely
would have imposed a lower sentence under an advisory Guidelines
scheme. We find nothing in the record that disturbs the
Government’s representation.
Accordingly, Grijalba’s conviction under 8 U.S.C. § 1326 is
AFFIRMED; his sentence, however, is VACATED, and the case is
REMANDED for further proceedings.
AFFIRMED IN PART; VACATED IN PART; REMANDED.