United States v. Games-Forbes

* 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this opinion should not be published and is not precedent except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. 04-40765
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO JAMES GAMES-FORBES, also known as
Alberto A. James-Forbs,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-193-1
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Alberto James Games-Forbes appeals the sentence imposed
following his guilty plea to illegal reentry into the United
States following deportation. Games was sentenced to a term of
imprisonment of 57 months to be followed by a three-year term of
supervised release.
Games argues for the first time on appeal that Almendarez-
Torres v. United States, 523 U.S. 224 (1998), has been undercut
by subsequent Supreme Court decisions, including Apprendi v. New

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No. 04-40765
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Jersey, 530 U.S. 466 (2000), and that if Almendarez-Torres is
overruled, the felony and aggravated felony provisions of
8 U.S.C. § 1326(b)(1) and (2) would be rendered unconstitutional.
He argues that his conviction would then be reduced to the lesser
offense under 8 U.S.C. § 1326(a) and that he could not be
resentenced to more than two years of imprisonment. Games
recognizes that his argument is foreclosed but wishes to preserve
it for further review.
Almendarez-Torres held that the enhanced penalties contained
in 8 U.S.C. § 1326(b) were sentencing factors and not elements of
the offense. 523 U.S. at 235. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court
must follow the precedent set in Almendarez-Torres unless the
Supreme Court overrules it. Dabeit, 231 F.3d at 984. Games’s
challenge to the constitutionality of 8 U.S.C. § 1326(b) is
without merit.
Games argues that his sentence was imposed pursuant to an
unconstitutional mandatory guidelines system, which was
reversible plain error in light of United States v. Booker,
125 S. Ct. 738 (2005). He argues that it is likely that the
district court would have imposed a lesser sentence because it
imposed a sentence at the bottom of the sentencing guidelines
range and because of his youth when he committed a prior felony
offense. He argues in the alternative that the error was

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No. 04-40765
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structural and that prejudice should be presumed. He contends
that even if the error was not structural, it presumably affected
his substantial rights and the fairness and integrity of the
judicial proceeding.
After Booker, it is clear that application of the federal
sentencing guidelines in their mandatory form constitutes error
that is plain. See United States v. Valenzuela-Quevedo, 407 F.3d
728, 732-33 (5th Cir. 2005), petition for cert. filed (July 25,
2005) (No. 05-5556). Games’s contention that this error is
structural and gives rise to a presumption of prejudice is
unavailing. See United States v. Malveaux, 411 F.3d 558, 560-61
n.9 (5th Cir. 2005), petition for cert. filed (July 11, 2005)
(No. 05-5297). Games must show that the error affected his
substantial rights, and he has not done so. See Valenzuela-
Quevedo, 407 F.3d at 733-34.
AFFIRMED.

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