United States v. Alvarado-Velasquez

* 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this opinion should not be published and is not precedent except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. 04-41213
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL ALVARADO-VELASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-329-ALL
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Raul Alvarado-Velasquez (“Alvarado”) appeals the 37-month
sentence of imprisonment imposed following his guilty-plea
conviction of one count of being found illegally in the United
States following removal. See 8 U.S.C. § 1326(a), (b).
Alvarado, relying on Blakely v. Washington, 124 S. Ct. 2531
(2004), argues that the district court violated his rights under
the Sixth Amendment by enhancing his sentence by 16 levels under
U.S.S.G. § 2L1.2(b)(1)(A)(i). The Sixth Amendment holding of

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No. 04-41213
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Blakely applies to the federal sentencing guidelines. See United
States v. Booker, 125 S. Ct. 738, 746 (2005).
Because Alvarado did not raise his argument in the district
court, our review is for plain error only. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517). Our review of the record
reveals no indication that the district court, sentencing under
an advisory scheme rather than a mandatory one, would have
reached a significantly different result as to Alvarado’s
sentence. See id. at 521. Because Alvarado cannot establish
that his substantial rights were affected, he cannot establish
plain error. See id. Accordingly, the judgment of the district
court is AFFIRMED.

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