United States v. Marquez-Flores

* 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this opinion should not be published and is not precedent except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. 04-41420
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELMER ENRIQUE MARQUEZ-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-237-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Elmer Enrique Marquez-Flores appeals his sentence imposed
following his guilty plea to illegal reentry after deportation.
He was sentenced to 33 months of imprisonment and two years of
supervised release. He argues that, in light of United States v.
Booker, 125 S. Ct. 738 (2005), his sentence is invalid because
the district court applied the Sentencing Guidelines as if they
were mandatory. We review for plain error. United States v.
Mares, 402 F.3d 511, 513, 520-22 (5th Cir. 2005), petition for

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No. 04-41420
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cert. filed (Mar. 31, 2005) (No. 04-9517); United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition
for cert. filed (July 25, 2005) (No. 05-5556).
Marquez-Flores is unable to establish plain error with
regard to his Booker claim because he cannot establish that being
sentenced under a mandatory Guidelines scheme affected his
substantial rights. The record does not indicate that the
district court “would have reached a significantly different
result” under a sentencing scheme in which the Guidelines were
advisory only. See Mares, 402 F.3d at 520-22;
Valenzuela-Quevedo, 407 F.3d at 733-34.
Marquez-Flores also asserts that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(a) and (b) are
unconstitutional. He acknowledges that his argument is
foreclosed, but he seeks to preserve the issue for possible
Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). This issue is foreclosed. See Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000).
Accordingly, the judgment of the district court is AFFIRMED.

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