United States v. Arreola-Amaya

* 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this opinion should not be published and is not precedent except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. 04-20690
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SALOMAN ARREOLA-AMAYA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-299-ALL
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Saloman Arreola-Amaya (Arreola) appeals the sentence
imposed following his guilty-plea conviction of illegal reentry
of a previously deported alien subsequent to an aggravated felony
conviction. Arreola argues, citing United States v. Booker,
125 S. Ct. 738 (2005), that the district court erred in
sentencing him because the court believed that the federal
sentencing guidelines were mandatory, rather than advisory.
He also contends that the “felony” and “aggravated felony”

-- 1 of 2 --

No. 04-20690
-2-
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional and that Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), should be overruled.
We review for plain error. See United States v. Mares, 402
F.3d 511, 520-21 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
With respect to the district court’s mandatory application of the
sentencing guidelines, Arreola concedes that he cannot
demonstrate that the district court would have imposed a
different sentence had it considered the guidelines to be
advisory. Accordingly, he has not established plain error in his
sentence. See Mares, 402 F.3d at 522.
Although the decision in Almendarez-Torres has been called
into question, see Shepard v. United States, 125 S. Ct. 1254,
1264 (2005) (Thomas, J., concurring), the Supreme Court has not
overruled it. Accordingly, Arreola’s argument that Almendarez-
Torres should be overruled and that 8 U.S.C. § 1326(b) be
declared unconstitutional is foreclosed. See United States v.
Rivera, 265 F.3d 310, 312 (5th Cir. 2001).
AFFIRMED.

-- 2 of 2 --