United States v. Huezo-Franco

* 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this opinion should not be published and is not precedent except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
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40938
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERONIMO FERNANDO HUEZO-FRANCO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-215-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Geronimo Fernando Huezo-Franco appeals his conviction and
sentence for illegal reentry after deportation.
Huezo argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000). Huezo’s argument concerning the
constitutionality of 8 U.S.C. § 1326(b) is, as he concedes,
foreclosed. See Almendarez-Torres v. United States, 523 U.S.

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No. 04-40938
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224, 235 (1998); United States v. Izaguirre-Flores, 405 F.3d 270,
277-78 (5th Cir.), cert. denied, 126 S. Ct. 253 (2005).
Huezo also contends that his sentence is improper under
Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States
v. Booker, 125 S. Ct. 738 (2005). He concedes that the plain-
error standard of review applies. Huezo has not shown that the
district court would have imposed a different sentence under an
advisory sentencing scheme. Thus, Huezo has not shown plain
error in connection with his sentence. See United States v.
Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir. 2005), cert.
denied, ___ S. Ct. ___ (Oct. 11, 2005) (No. 05-6242).
The judgment of the district court is AFFIRMED.

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