United States v. Delgado-Ramirez

* 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this opinion should not be published and is not precedent except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. 04-50708
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO DELGADO-RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-112-1-WWJ
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Gilberto Delgado-Ramirez appeals his sentence following his
guilty-plea conviction of illegal reentry, in violation of 8
U.S.C. § 1326(a) and (b)(2). The district court sentenced him to
27 months of imprisonment, three years of supervised release, and
a $100 special assessment.
Delgado-Ramirez argues that 8 U.S.C. § 1326(b)(2) is
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466
(2000), because it does not require the fact of a prior

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aggravated-felony conviction to be charged in the indictment and
proved beyond a reasonable doubt. As Delgado-Ramirez concedes,
this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and Almendarez-Torres was not
overruled by Apprendi. See United States v. Sarmiento-Funes, 374
F.3d 336, 346 (5th Cir. 2004).
For the first time on appeal, Delgado-Ramirez argues that,
under United States v. Booker, 125 S. Ct. 738 (2005), this court
must vacate his sentence and remand for resentencing because the
mandatory guideline regime was in place at the time of his
sentencing. An unpreserved challenge to the computation of a
defendant’s sentence under the formerly mandatory sentencing
guidelines is reviewed for plain error. United States v. Mares,
402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517).
The district court’s application of the guidelines in their
mandatory form constituted error that is “plain” for purposes of
satisfying the first two prongs of the plain error analysis. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.
2005). Delgado-Ramirez must nevertheless show that the court’s
error affected his substantial rights. Id. To make such a
showing, Delgado-Ramirez bears the burden of demonstrating “that
the sentencing judge--sentencing under an advisory scheme rather
than a mandatory one--would have reached a significantly
different result.” See Mares, 402 F.3d at 521. Delgado-Ramirez

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has failed to make such a showing. Accordingly, the judgment of
the district court is AFFIRMED.

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