United States v. Castro-Guzman , 168 F. App'x 616 ( 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. 04-41431
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS CASTRO-GUZMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-530-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jesus Castro-Guzman appeals his guilty-plea conviction for
being found in the United States after previously having been
deported. Castro-Guzman argues that there was error under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because he
was sentenced under the mandatory Sentencing Guidelines. Castro-
Guzman’s sentence was enhanced based only on his prior
convictions, and, thus, Castro-Guzman’s sentence was not affected
by a Sixth Amendment violation. See Booker, 125 S. Ct. at 750,
*
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this opinion should not be published and is not precedent except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. 04-41431
-2-
769. Nevertheless, the district court erred by imposing a
sentence pursuant to a mandatory application of the Sentencing
Guidelines. Id. at 768; see also United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,
126 S. Ct. 267 (2005). However, Castro-Guzman cannot establish
that this error affected his substantial rights because he cannot
show that the outcome would have been different absent the error.
See United States v. Mares, 402 F.3d 511, 521 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). The record does not establish that
the sentencing court would have imposed a different sentence had
it been proceeding under an advisory guideline scheme.
Castro-Guzman also challenges the constitutionality of
8 U.S.C. § 1326(b)’s penalty provisions in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Castro-Guzman’s challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Castro-Guzman 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-Guzman 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.
The judgment of the district court is AFFIRMED.