United States v. Gomez-Graciano

* 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this opinion should not be published and is not precedent except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.
** Gomez does not appeal the revocation of his supervised
release or the sentence imposed following revocation based on
this offense.
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. 04-41295
c/w No. 04-41296
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YSIDRO GOMEZ-GRACIANO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:00-CR-34-ALL
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Ysidro Gomez-Graciano (Gomez) appeals the sentence imposed
following his guilty plea conviction for illegal reentry, in
violation of 8 U.S.C. § 1326.** He argues, for the first time on
appeal, that the district court erred in sentencing him under a
mandatory sentencing guidelines scheme, citing United States v.
Booker, 125 S. Ct. 738, 756 (2005). He acknowledges that the

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No. 04-41295
c/w No. 04-41296
-2-
argument is reviewed for plain error but contends that he does
not have to demonstrate any effect on his substantial rights
because the error is structural and because prejudice should be
presumed.
Plain error is the correct standard of review. See United
States v. Malveaux, __F.3d__, No. 03-41618, 2005 WL 1320362 at *1
n.9 (5th Cir. Apr. 11, 2005). The district court committed error
that is plain when it sentenced Gomez under a mandatory
sentencing guidelines regime. See United States v. Valenzuela-
Quevedo, 407 F.3d 728, 733 (5th Cir. 2005); United States v.
Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517). Gomez, however, fails to
meet his burden of showing that the district court’s error
affected his substantial rights. See Valenzeuela-Quevedo, 407
F.3d at 733-34; Mares, 402 F.3d at 521. His argument that Mares
was wrongly decided is unavailing. See United States v. Ruff,
984 F.2d 635, 640 (5th Cir. 1993).
As he concedes, Gomez’s argument that the sentencing
provisions in 8 U.S.C. § 1326(a) and (b) are unconstitutional is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000);
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). The
district court’s judgment is AFFIRMED.

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