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

United States v. Del Rio

United States v. Del Rio
U.S. Court of Appeals for the Fifth Circuit · Decided August 18, 2005 · Benavides, Clement, Per Curiam, Prado
145 F. App'x 73

United States v. Del Rio

Opinion

PER CURIAM: *

Flor Del Rio appeals her sentence following her guilty-plea conviction of one charge of illegal reentry into the United States. Del Rio argues that the district court erred in sentencing her under a mandatory sentencing guidelines scheme. She acknowledges that this claim is reviewed for plain error only, but she contends that she can meet this standard.

The district court committed error that is plain by sentencing Del Rio under a mandatory sentencing guidelines regime. See United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), cert. denied — U.S. -, — S.Ct. -, — L.Ed.2d -, 2005 WL 816208 (2005); United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), cert. denied — U.S. -, — S.Ct. -, — L.Ed.2d -, 2005 WL 1811485 (2005). Nevertheless, Del Rio has not carried her burden of showing that the district court’s error affected her substantial rights. See Valenzuela-Quevedo, 407 F.3d at 733-34; Mares, 402 F.3d at 521. She thus has not shown that she should receive relief on this claim.

Del Rio’s argument that the sentencing provisions in 8 U.S.C. § 1326(b) are unconstitutional is, as she concedes, foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See Apprendi v. New Jersey, 530 U.S. 466, 489-490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United *74 States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Del Rio has shown no reversible error in the district court’s judgment. Consequently, that judgment is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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