United States v. Hernandez-Hernandez , 168 F. App'x 632 ( 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. 04-41630
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN HERNANDEZ-HERNANDEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-529-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Hernandez-Hernandez appeals his guilty-plea conviction
and sentence for being found in the United States, without
permission, following deportation. See 8 U.S.C. § 1326(a), (b).
Although Hernandez-Hernandez signed a waiver provision as part of
his plea agreement, we need not determine the effect of that
waiver because Hernandez-Hernandez cannot prevail on the merits
of his appellate arguments.
*
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this opinion should not be published and is not precedent except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. 04-41630
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For the first time on appeal, Hernandez-Hernandez argues
that the sentencing provisions in § 1326(b) are unconstitutional.
Hernandez-Hernandez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Hernandez-Hernandez contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), 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). Hernandez-Hernandez
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.
Also for the first time on appeal, Hernandez-Hernandez
argues that the district court erred when it sentenced him
pursuant to the mandatory United States Sentencing Guidelines
held unconstitutional in United States v. Booker, 543 U.S. 220(2005). Application of the Sentencing Guidelines in their
mandatory form constitutes error that is plain. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,
126 S. Ct. 267 (2005). However, nothing in the record indicates
that the district court would have imposed a different sentence
if it had known that it was not bound by the sentencing
guidelines. Accordingly, district court’s error did not affect
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Hernandez-Hernandez’s substantial rights. See id. at 733-34.
Hernandez-Hernandez has not established reversible plain error.
The judgment of the district court is AFFIRMED.