United States v. Rios-Dominguez

* 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this opinion should not be published and is not precedent except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
September 29, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41570
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO RIOS-DOMINGUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-557-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Mario Rios-Dominguez appeals the 37-month sentence imposed
by the district court following his guilty-plea conviction for
being an alien found illegally in the United States after
deportation following conviction of an aggravated felony, in
violation of 8 U.S.C. § 1326. The Government seeks to enforce
the waiver-of-appeal provision in Rios-Dominguez’s plea
agreement. Rios-Dominguez waived, inter alia, “the right to

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appeal the sentence imposed or the manner in which it was
determined,” except for a sentence above the statutory maximum or
an upward departure from the applicable sentencing guidelines
range. Rios-Dominguez contends that this waiver provision is not
enforceable because, at his rearraignment, the magistrate judge
incorrectly told him that he retained the right to appeal “any
illegal sentence.” Because the magistrate judge’s statement
regarding the parameters of the reserved right to appeal
inaccurately described the waiver provision, Rios-Dominguez’s
waiver cannot be deemed knowing and voluntary with respect to
“any illegal sentence.” See FED. R. CRIM. P. 11(b)(1)(N); United
States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999).
For the first time on appeal, Rios-Dominguez argues that the
“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). This argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998). See United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000).
Also for the first time on appeal, Rios-Dominguez argues
that the district court erred in sentencing him under a mandatory
sentencing guidelines scheme. See United States v. Booker, 125
S. Ct. 738, 756 (2005). Rios-Dominguez acknowledges that this
argument is reviewed for plain error, but argues that he does not
have to show that the district court’s error affected her

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substantial rights because the error is structural and because
prejudice should be presumed.
Plain error is the correct standard of review. See United
States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),
petition for cert. filed (July 11, 2005) (No. 05-5297). The
district court committed error that is plain when it sentenced
Rios-Dominguez under a mandatory sentencing guidelines regime.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th
Cir. 2005), petition for cert. filed (July 25, 2005) (No. 05-
5556); United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005). Rios-Dominguez fails to meet his burden of showing
that the district court’s error affected his substantial rights.
See Valenzeuela-Quevedo, 407 F.3d at 733-34; United States v.
Mares, 402 F.3d 511, 521 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517); see also United States v.
Bringier, 405 F.3d 310, 317 n.4 (5th Cir. 2005), petition for
cert. filed (July 26, 2005) (No. 05-5535).
AFFIRMED.

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