Summary Calendar UNITED STATES OF AMERICA v. Martha Georgette Mariscal-Lugo

* 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this opinion should not be published and is not precedent except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
October 11, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41437
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MARTHA GEORGETTE MARISCAL-LUGO
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-337-ALL
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Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Martha Georgette Mariscal-Lugo pleaded guilty to being an
alien unlawfully found in the United States after deportation in
violation of 8 U.S.C. §§ 1326(a) and (b) and was sentenced to 37
months of imprisonment and three years of supervised release.
She appeals her conviction and sentence.
For the first time on appeal, Mariscal-Lugo contends that
she was illegally sentenced pursuant to the formerly mandatory
sentencing guidelines regime, in violation of United States v.

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No. 04-41437
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Booker, 125 S. Ct. 738 (2005). Mariscal-Lugo’s plea agreement
contained a waiver-of-appeal provision by which she waived “the
right to appeal the sentence imposed or the manner in which it
was determined,” except for a sentence above the statutory
maximum or an upward departure from the applicable guidelines
range. Mariscal-Lugo contends that this waiver provision is not
enforceable because, at her rearraignment, the magistrate judge
incorrectly told her that she retained the right to appeal an
“illegal sentence.” We agree. Because the magistrate judge
inaccurately described the waiver provision, Mariscal-Lugo’s
waiver cannot be deemed knowing and voluntary with respect to an
“illegal sentence.” See FED. R. CRIM. P. 11(b)(1)(N); United
States v. Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).
Sentencing a defendant pursuant to a mandatory guidelines
scheme, standing alone, constitutes “Fanfan” error, and such an
error is “plain.” See Booker, 125 S. Ct. at 769; United States
v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005).
Mariscal-Lugo makes no argument, and “there is no indication in
the record from the sentencing judge’s remarks or otherwise” that
the court would have imposed a different sentence under an
advisory guidelines regime. United States v. Mares, 402 F.3d
511, 522 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005)(No. 04-9517). Because Mariscal-Lugo has not shown that the
error affected her “substantial rights,” see id. at 521, she has
not demonstrated plain error.

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No. 04-41437
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Mariscal-Lugo also argues that, under Apprendi v. New
Jersey, 530 U.S. 466 (2000), and its progeny, 8 U.S.C. § 1326(b)
is unconstitutional because it permits a sentencing judge to
increase a sentence beyond the statutory maximum based on a
factor that need not be submitted to a jury for proof or admitted
by the defendant. Mariscal-Lugo concedes that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998), but she seeks to preserve the issue for possible
Supreme Court review. This court must follow Almendarez-Torres
“‘unless and until the Supreme Court itself determines to
overrule it.’” United States v. Izaguirre-Flores, 405 F.3d 270,
277-78 (5th Cir. 2005) (citation omitted).
AFFIRMED.

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