U.S. Court of Appeals for the Fifth Circuit, 2005

United States v. Marquez-Flores

United States v. Marquez-Flores
U.S. Court of Appeals for the Fifth Circuit · Decided August 18, 2005 · Jones, Wiener, Prado
142 F. App'x 219

United States v. Marquez-Flores

Opinion

PER CURIAM: *

Defendant-Appellant Jose Rene Perez-Marquez (“Perez”) appeals his 41-month sentence imposed following his guilty-plea *220 conviction for illegal reentry into the United States following deportation. Citing United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), he argues, for the first time on appeal, that the district court erred in sentencing him under a mandatory guideline scheme.

As Perez did not raise his Booker argument in the district court, we review this issue for plain error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005). The district court committed error that is plain when it sentenced Perez under a mandatory guideline scheme. See id. at 733; United States v. Martinez-Lugo, — F.3d -, No. 04-40478, 411 F.3d 597, 2005 WL 1331282 *2 (5th Cir. June 7, 2005). Perez fails, however, to meet his burden of showing that the district court’s error affected his substantial rights. See Valenzuela-Quevedo, 407 F.3d at 733-34; United States v. Mares, 402 F.3d 511, 521 (5th Cir.), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

As Perez concedes, his constitutional argument that his sentence, which was enhanced under 8 U.S.C. § 1326(b) for a prior aggravated felony conviction, is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Accordingly, Perez’s sentence is

AFFIRMED.

*

Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be *220 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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