United States v. Perez-Ramales , 151 F. App'x 341 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 24, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41418
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMAS ALBERTO PEREZ-RAMALES,
also known as Tomas Velalsquez-Sanchez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Tomas Alberto Perez-Ramales (Perez) appeals the sentence
imposed following his guilty-plea conviction for being illegally
present in the United States in violation of 8 U.S.C. § 1326 (a)
& (b). Perez argues that the district court erred by sentencing
*
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this opinion should not be published and is not precedent except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.
him under the mandatory guidelines scheme held unconstitutional
in United States v. Booker, 125 S. Ct. 738 (2005). He made no
Booker related objection whatever below.
The government argues that Perez waived his right to appeal
his sentence. In support of its waiver argument, the government
points to the following language contained in Perez’s plea
agreement:
“The defendant, by entering this plea, also waives any right
to have facts that the law makes essential to the punishment
either (1) charged in the indictment or (2) proven to a jury
or (3) proved beyond a reasonable doubt. The defendant
explicitly consents to be sentenced pursuant to the
applicable Sentencing Guidelines. The defendant explicitly
acknowledges that his plea to the charged offenses(s)
authorizes the court to impose any sentence authorized by
the Sentencing Guidelines, up to and including the statutory
maximum under the relevant statute(s).”
We have differentiated the two types of error under Booker,
labeling the type of error that Perez raises in this appeal — the
application of the Sentencing Guidelines as mandatory — as Fanfan
error. See United States v. Martinez-Lugo, 411 F.3d 597, 600
(5th Cir. 2005), petition for cert. filed (Sep. 2, 2005)(No.
05-6242). The other type of error under Booker is the violation
of the Sixth Amendment right to have a jury find beyond a
reasonable doubt all facts that increase the sentence beyond the
maximum sentence that could be imposed based on facts admitted by
the defendant. Id. The terms of this plea agreement arguably
constitute a waiver of the Sixth Amendment rights otherwise
2
protected by Booker error, but they fall short of the appeal
waiver that the argument claims. Not only does Perez’s plea
agreement contain no explicit waiver of appeal (and, indeed, does
not even contain the word “appeal” or any synonym thereof), but
there was no discussion of a waiver of the right to appeal at the
Rule 11 hearing. See FED. R. CRIM P. 11(b)(1)(N).
Perez’s claim of Fanfan error is raised for the first time
on appeal, as he concedes, and so we review the claim under the
plain error standard of review. Valenzuela-Quevedo, 407 F.3d at
732.1 Fanfan error “satisfies the first two prongs of that
standard by being both ‘plain’ and ‘error.’” Martinez-Lugo, 411
F.3d at 600. To meet the third prong of the plain error
analysis, however, and show that his substantial rights were
affected, Perez “faces a difficult challenge in establishing that
the sentencing court’s use of a mandatory rather than an advisory
Guidelines scheme actually affected the outcome of the
proceedings.” United States v. De Jesus-Batres, 410 F.3d 154,
166 (5th Cir. 2005) petition for cert. filed (Aug. 9, 2005)(No.
1
We assume, arguendo only, that the above quoted language
in Perez’s plea agreement does not constitute a waiver by Perez
of any objection to being sentenced under mandatory guidelines so
as to preclude his prevailing before this court on the merits of
his complaint that it was error to so sentence him. See United
States v. Haidley 400 F.3d 642, 644-45 (8th Cir. 2005); United
States v. Lea, 400 F.3d 1115 (8th Cir. 2005). See also United
States v. Puckett, ___ F.3d ___, No. 04-5988, 2005 WL 2123790, at
*2 (6th Cir. Sep. 6, 2005).
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05-6275). “To carry this burden, the defendant must ordinarily
point to statements in the record by the sentencing judge
demonstrating a likelihood that the judge, sentencing under an
advisory scheme rather than a mandatory one, would have reached a
significantly different result.” Id. This court has emphasized
that the “defendant’s burden of establishing prejudice ‘should
not be too easy.’” United States v. Mares, 402 F.3d 511, 521 (5th
Cir. 2005) (quoting United States v. Dominguez Benitez, 124 S. Ct.
2333, 2340 (2004)). The fact that Perez received the 46 month
minimum in the Sentencing Guidelines range (46-57 months) for his
offense level and criminal history score is not alone sufficient
to satisfy the third prong. Martinez-Lugo, 411 F.3d at 601;
United States v. DeJesus-Batres, 400 F.3d 154, 163-66 (5th Cir.
2005); United States v. Creech, 408 F.3d 264, 271-72 (5th Cir.
2005); United States v. Holmes, 406 F.3d 337, 362-66 (5th Cir.
2005). There is nothing in the record to indicate that the judge
would have sentenced Perez differently under advisory
guidelines.2 Because Perez has not shown that his substantial
rights were affected, he has not demonstrated plain error. Perez
also argues that this error should be presumed prejudicial, but
we have previously rejected that argument. United States v.
2
We note that the district court at sentencing overruled
Perez’s contention (not raised on appeal) that the PSR over
represented his criminal history, and in doing so characterized
his prior attempted murder conviction “as a very, very serious
offense.”
4
Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005).
Perez’s only remaining argument is that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional in light of Apprendi v. New Jersey, 120 S. Ct.
2348 (2000), and its progeny, because it permits a sentencing
judge to increase a sentence beyond the statutory maximum based
on a factor that need not be submitted to a jury for proof or
admitted by the defendant. Perez concedes this argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 118 S. Ct. 1219 (1998), but raises it here to
preserve the issue for review. We must follow Almendarez-Torres
“‘unless and until the Supreme Court itself determines to
overrule it.’” United States v. Izaguirre-Flores, 405 F.3d 270,
277–78 (5th Cir. 2005) (citation omitted).
AFFIRMED.
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