United States v. Gonzalez-Lopez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40384
c/w No. 04-40386
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO GONZALEZ-LOPEZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:00-CR-272-1
USDC No. 5:03-CR-1553-ALL
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Mario Alberto Gonzales-Lopez (Gonzalez), appeals the 57-
month sentence imposed after he pleaded guilty to one count of
illegal reentry into the United States. See 8 U.S.C. § 1326.
Gonzales abandons his appeal from the revocation of supervised
release that arose from the illegal reentry. See United States
v. Willingham, 310 F.3d 367, 371 (5th Cir. 2002) (issues not
briefed on appeal are abandoned).

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No. 04-40384
c/w No. 04-40386
-2-
Gonzalez contends that 8 U.S.C. § 1326(b) is
unconstitutional and that this court should vacate his sentence
and remand his case for resentencing to no more than two years in
prison under § 1326(a). As he concedes, this contention is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998).
Gonzalez also contends that he is entitled to resentencing
because the district court sentenced him under a mandatory
application of the federal sentencing guidelines prohibited by
United States v. Booker, 125 S. Ct. 738, 756-57, 769 (2005). We
review for plain error. See United States v. Valenzuela-Quevedo,
407 F.3d 728, 732 (5th Cir. 2005), petition for cert. filed (July
25, 2005) (No. 05-5556). Although there was an error under
Booker, Gonzalez fails to “demonstrate a probability sufficient
to undermine confidence in the outcome . . . that the district
judge would have imposed a different sentence” under advisory
guidelines. Valenzuela-Quevedo, 407 F.3d at 733 (internal
quotation marks and citation omitted). Gonzalez thus fails to
show that the error affected his substantial rights as he must do
to meet the plain-error standard. See id.; United States v.
Mares, 402 F.3d 511, 502, 521-22 (5th Cir. 2005), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517).
The judgment of the district court is AFFIRMED.

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