United States v. Hernandez-Grimaldo

* 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this opinion should not be published and is not precedent except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. 04-40640
c/w No. 04-40658
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO HERNANDEZ-GRIMALDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-97-ALL
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Francisco Hernandez-Grimaldo appeals his sentence following
his guilty-plea conviction for illegal reentry into the United
States. Hernandez-Grimaldo argues that the district court erred
in sentencing him under a mandatory sentencing guidelines scheme.
He acknowledges that this claim is reviewed for plain error only.
The district court committed error that is plain by
sentencing Hernandez-Grimaldo under a mandatory sentencing
guidelines regime. See United States v. Mares, 402 F.3d 511,

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No. 04-40640
c/w No. 04-40658
-2-
520-21 (5th Cir. 2005), petition for 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). Nevertheless, Hernandez-Grimaldo has not carried
his burden of showing that the district court’s error affected
his substantial rights. See Valenzuela-Quevedo, 407 F.3d at 733-
34; Mares, 402 F.3d at 521. Hernandez-Grimaldo’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 n.9 (5th Cir. 2005), petition for cert. filed (July 11,
2005) (No. 05-5297); see also United States v. Martinez-Lugo, 411
F.3d 597, 600-01 (5th Cir. 2005). Hernandez-Grimaldo has not
shown that he should receive relief on this claim.
Hernandez-Grimaldo’s argument that the sentencing provisions
in 8 U.S.C. § 1326(b) are unconstitutional is, as he concedes,
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
247 (1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-490
(2000);
Hernandez-Grimaldo has shown no reversible error in the
district court’s judgment. Consequently, that judgment is
AFFIRMED.

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