United States v. Vergara-Gonzalez , 168 F. App'x 643 ( 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 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41743
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MISAEL VERGARA-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-667-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Misael Vergara-Gonzalez appeals his sentence upon his
guilty-plea conviction for illegal reentry after deportation, in
violation of 8 U.S.C. § 1326(a) and (b)(2). Vergara-Gonzalez’s
appeal waiver is unenforceable because the magistrate judge
advised him at his rearraignment hearing that he could appeal an
illegal sentence. See, e.g., United States v. Robinson, 187 F.3d
516, 517-18 (5th Cir. 1999).
*
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this opinion should not be published and is not precedent except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. 04-41743
-2-
Vergara-Gonzalez contends that he is entitled to be
resentenced because the district court sentenced him under a
mandatory application of the United States Sentencing Guidelines,
which is prohibited by United States v. Booker, 543 U.S. 220(2005). The parties agree that plain error is the proper
standard of review in this case. Vergara-Gonzalez does not
attempt, however, to make the showing of plain error that is
required by our precedent in United States v. Mares, 402 F.3d
511, 520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Moreover, this court has rejected his arguments that a Booker
error is a structural error and that such errors are presumed to
be prejudicial. See Mares, 402 F.3d at 520-22; see also United
States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.),
cert. denied, 126 S. Ct. 194 (2005).
Vergara-Gonzalez also asserts that the felony and
aggravated-felony provisions of § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000). Vergara-Gonzalez’s constitutional challenge is
foreclosed by Almendarez- Torres v. United States, 523 U.S. 224(1998). Although he 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).
No. 04-41743
-3-
Vergara-Gonzalez 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. For the
foregoing reasons, the judgment of the district court is
AFFIRMED.