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United States v. Betancourt-Cruz , 168 F. App'x 602 ( 2006 )


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  •                                                        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. 04-41500
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGACIANO JAIMES BETANCOURT-CRUZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-538-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Rogaciano Jaimes Betancourt-Cruz appeals his sentence
imposed following his guilty conviction plea for illegal reentry
into United States following deportation.     Betancourt-Cruz was
sentenced to a term of imprisonment of 57 months, to be followed
by a three-year term of supervised release.     We need not decide
the applicability of the waivers in this case because the issues
raised by Betancourt-Cruz are without arguable merit.
*
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this opinion should not be published and is not precedent except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. 04-41500
-2-
Betancourt-Cruz argues that his sentence under the mandatory
guidelines system was plain error that affected his substantial
rights because the district court would have imposed a different
sentence under an advisory guidelines system.    He relies on the
fact that the district court imposed a sentence at the bottom of
the sentencing guidelines range.   He also contends that the
sentence affected the fairness and integrity of the judicial
proceeding.
In the remedial portion of United States v. Booker,
    125 S. Ct. 738
    , 764-65 (2005), the Supreme Court excised
    18 U.S.C. § 3553
    (b)(1) of the Sentencing Reform Act, rendering the Federal
Sentencing Guidelines effectively advisory.     After Booker, it is
clear that application of the Federal Sentencing Guidelines in
their mandatory form constitutes error that is plain.    See United
States v. Valenzuela-Quevedo,
    407 F.3d 728
    , 732-33 (5th Cir.),
cert. denied,
    126 S. Ct. 267
     (2005).   Betancourt-Cruz must show
that the error affected his substantial rights, and he has not
done so.   See Valenzuela-Quevedo,
    407 F.3d at 733-34
    .   His
sentence at the bottom of the sentencing guidelines range is not
sufficient to make the required showing.   See United States v.
Bringier,
    405 F.3d 310
    , 318 n.4 (5th Cir.), cert. denied,
    126 S. Ct. 264
     (2005).
Betancourt-Cruz argues that the “felony” and “aggravated
felony” provisions of
    8 U.S.C. § 1326
    (b)(1) & (2) are
unconstitutional, relying on the Supreme Court’s suggestion in
No. 04-41500
-3-
Apprendi v. New Jersey,
    530 U.S. 466
     (2000) that Almendarez-
Torres v. United States,
    523 U.S. 224
     (1998) was wrongly decided.
Betancourt-Cruz’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States.    Although Betancourt-Cruz
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).    Betancourt-Cruz
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.
AFFIRMED.