United States v. Hinojosa-Soto

* 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this opinion should not be published and is not precedent except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
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41659
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL HINOJOSA-SOTO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-537
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Manuel Hinojosa-Soto (“Hinojosa”) appeals his sentence under
8 U.S.C. § 1326(a) and (b) for illegal reentry into the United
States after having been deported following a conviction for an
aggravated felony. He asserts two bases for the appeal.
Hinojosa argues for the first time on appeal that the
district court’s belief during sentencing that the United States
Sentencing Guidelines were mandatory, rather than advisory,
requires reversal by this court under United States v. Booker,

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No. 04-41659
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125 S. Ct. 738 (2005). Review is for plain error. See United
States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005), cert.
denied, ___ S. Ct. ___ (Oct. 11, 2005) (No. 05-6242). Hinojosa’s
sentence, imposed pursuant to mandatory guidelines, constitutes
error. See id. Hinojosa asserts that the error is structural,
or at least presumptively prejudicial, such that he is not
required to show prejudice. As he acknowledges, this argument is
foreclosed. See id. at 601. He admits that he cannot show that
his sentence likely would have been different under an advisory
application of the Guidelines. See United States v. Mares, 402
F.3d 511, 521-22 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Hinojosa also asserts for the first time on appeal that the
“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
are unconstitutional. The Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
controls this issue. We must follow Almendarez-Torres “unless
and until the Supreme Court itself determines to overrule it.”
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Thus, this issue is also foreclosed.
The district court’s judgment is AFFIRMED.

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