United States v. Reyna-Sauceda

* 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this opinion should not be published and is not precedent except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. 04-41745
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO REYNA-SAUCEDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-790-ALL
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Armando Reyna-Sauceda appeals from his conviction of illegal
reentry following deportation. He contends, for the first time
on appeal, that the district court’s application of the formerly
mandatory guideline sentencing scheme constituted per se
reversible plain error, without consideration whether the
district court might have imposed a lower sentence under the
current, advisory sentencing scheme and that the felony and
aggravated felony provisions of 8 U.S.C. § 1326(b) are
unconstitutional facially and as applied to him.

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No. 04-41745
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Reyna correctly concedes that both of his contentions are
foreclosed by this court’s precedents, but he raises them to
preserve them for further review. First, a “Fanfan” error raised
for the first time on appeal is reviewed for plain error. United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
Reyna concedes that he cannot make a showing of prejudice
because the district court did not indicate what it would have
done under an advisory guideline sentencing scheme. Nothing in
the record suggests that the district court might have imposed a
lower sentence under an advisory guideline sentencing scheme.
Reyna thus has not shown that his substantial rights were
implicated. See id. at 733.
Second, Apprendi v. New Jersey, 530 U.S. 466 (2000), did not
overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998).
See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000). The Court’s recent decisions in
Shepard v. United States, 125 S. Ct. 1254, 1262-63 (2005), United
States v. Booker, 125 S. Ct. 738, 769 (2005), and Blakely v.
Washington, 124 S. Ct. 2531, 2537 (2004), also did not overrule
Almendarez-Torres. See Shepard, 125 S. Ct. at 1262-63 & n.5;
Booker, 125 S. Ct. at 756 (reaffirming Apprendi); Blakely, 124
S. Ct. at 2536 (same). This court therefore must follow
Almendarez-Torres “unless and until the Supreme Court itself

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determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted).
AFFIRMED.

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