United States v. Esquivel-Juarez
United States v. Esquivel-Juarez
Opinion of the Court
Rodolfo Esquivel-Juarez (Esquivel) appeals the 70-month sentence imposed after
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
Case-law data current through December 31, 2025. Source: CourtListener bulk data.