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

United States v. Esquivel-Juarez

United States v. Esquivel-Juarez
U.S. Court of Appeals for the Fifth Circuit · Decided August 17, 2005 · Benavides, Clement, Prado
145 F. App'x 463

United States v. Esquivel-Juarez

Opinion of the Court

PER CURIAM: *

Rodolfo Esquivel-Juarez (Esquivel) appeals the 70-month sentence imposed after *464he pleaded guilty to one count of illegal reentry into the United States. See 8 U.S.C. § 1326.

Esquivel contends that 8 U.S.C. § 1326(b) is unconstitutional and that this court should vacate his sentence and remand his case for resentencing to no more than two years in prison under 8 U.S.C. § 1326(a). As he concedes, this contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Esquivel also contends that he is entitled to resentencing because the district court sentenced him under a mandatory application of the federal sentencing guidelines contrary to the rule of United States v. Booker, — U.S. -, 125 S.Ct. 738, 756-57, 769, 160 L.Ed.2d 621 (2005). We review for plain error. See 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 (July 25, 2005) (No. 05-5556). Although there was an error, Esquivel has failed to demonstrate a sufficient probability “that the district judge would have imposed a different sentence” under advisory guidelines. See id. at 733. Esquivel thus fails to show that the error affected his substantial rights as he must do to meet the plain-error standard. See id.; United States v. Mares, 402 F.3d 511, 502, 521-22 (5th Cir. 2005), cert. denied — U.S. -, — S.Ct. -, — L.Ed.2d -, 2005 WL 816208 (Mar. 31, 2005) (No. 04-9517).

The judgment of the district court is AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *464published and is not precedent except under the limited circumstances set forth in 5th Cm. R. 47.5.4.

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