United States v. Hipolito-Trevino , 135 F. App'x 782 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-50710
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN PEDRO HIPOLITO-TREVINO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-851-1-WWJ
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Pedro Hipolito-Trevino (Hipolito) appeals the 41-month
sentence he received after pleading guilty to one count of
illegal reentry into the United States after having been
deported. See 8 U.S.C. § 1326.
Hipolito contends that his sentence violated due process and
should have been limited to two years because his indictment
failed to allege the prior drug-trafficking conviction. As he
*
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this opinion should not be published and is not precedent except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. 04-50710
-2-
concedes, this contention is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998).
Hipolito also contends that he is entitled to resentencing
because the district court sentenced him under a mandatory
application of the guidelines that has been prohibited by United
States v. Booker, 125 S. Ct. 738, 756-57, 769 (2005). Because
Hipolito did not raise this issue in the district court, we
review for plain error. United States v. Valenzuela-Quevedo, 407
F.3d 728, 732 (5th Cir. 2005). Although there was an error under
Booker, Hipolito fails to demonstrate that the district court
would have imposed a different sentence under advisory
guidelines. Id. at 733. He therefore fails to show that the
error affected his substantial rights as is necessary under the
plain-error standard. See id.; United States v. Mares, 402 F.3d
511, 521-22 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517).
The judgment of the district court is AFFIRMED.