United States v. Garcia-Aguilar

* 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this opinion should not be published and is not precedent except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
June 22, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40992
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ALBERTO GARCIA-AGUILAR,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-263-ALL
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jorge Alberto Garcia-Aguilar pleaded guilty to being an
alien unlawfully found in the United States after deportation,
having previously been convicted of an aggravated felony, and he
was sentenced to 46 months of imprisonment and three years of
supervised release. He appeals his conviction and sentence.
Garcia-Aguilar argues for the first time on appeal that the
felony and aggravated felony provisions of 8 U.S.C. § 1326(b) are

-- 1 of 3 --

No. 04-40992
-2-
unconstitutional and that the validity of Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), has been called into
question in light of later cases decided by the Supreme Court.
He concedes that this issue is foreclosed, and he raises it
solely to preserve it for further review by the Supreme Court.
Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000) did not
overrule Almendarez-Torres. As Garcia-Aguilar concedes, this
argument is foreclosed unless and until the Supreme Court itself
decides to overrule Almendarez-Torres. See Apprendi, 530 U.S.
at 489-90; United States v. Mancia-Perez, 331 F.3d 464, 470
(5th Cir.), cert. denied, 540 U.S. 935 (2003).
Garcia-Aguilar also argues that the district court erred in
sentencing him under a mandatory application of the guidelines
prohibited by United States v. Booker, 125 S. Ct. 738, 756-57,
769 (2005). Garcia-Aguilar did not raise this issue in the
district court, so we review it for plain error. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005).
Although there was an error, Garcia-Aguilar’s arguments and
review of the record do not demonstrate “that the district judge
would have imposed a different sentence” under advisory
guidelines. Id. at 733. Garcia-Aguilar has not shown that the
error affected his substantial rights as required under the plain
error standard. See Valenzuela-Quevedo 407 F.3d at 732-33;
United States v. Mares, 402 F.3d 511, 520-22 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005)(No. 04-9517).

-- 2 of 3 --

No. 04-40992
-3-
Garcia-Aguilar further argues that even if he has failed to
show prejudice, the court should reverse because the error was
structural and should be deemed presumptively prejudicial. He
acknowledges that the court did not adopt this approach in Mares,
but he believes that Mares was wrongly decided and he raises the
issue to preserve it for further review. The issue is indeed
foreclosed. See United States v. Malveaux, __F.3d__, No. 03-
41618, 2005 WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).
AFFIRMED.

-- 3 of 3 --