United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-41535 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO GARZA-GARZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-480-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Sergio Garza-Garza (Garza) appeals his guilty plea

conviction and sentence for illegal reentry after a previous

deportation. For the first time on appeal, Garza argues that the

district court erred under United States v. Booker,

(2005), in sentencing him pursuant to a mandatory application of

the Sentencing Guidelines.

Garza’s argument that the district court’s mandatory

application of the Guidelines is “structural” and “not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 04-41535 -2-

susceptible to harmless error analysis” has been rejected as

inconsistent with this court’s analysis in United States v.

Mares,

(5th Cir.), cert. denied,

(2005). See e.g., United States v. Martinez-Lugo,

(5th Cir.), cert. denied,

(2005). In order to

obtain relief, Garza must demonstrate plain error. See Martinez-

Lugo,

; see also United States v. Valenzuela-

Quevedo,

(5th Cir.), cert. denied,

(2005).

The district court’s mandatory application of the Guidelines

constitutes error that is plain. See Valenzuela-Quevedo,

; Martinez-Lugo,

. However, Garza has

failed to show that the error affected his substantial rights.

Although the district court was sympathetic to Garza and

sentenced him at the low end of the guidelines range, nothing in

the record indicates that it would have sentenced Garza to a

lesser sentence if it knew that the Guidelines were merely

advisory. See United States v. Creech,

(5th

Cir.), cert. denied,

(2005); United States v.

Bringier,

, 317 & n.14 (5th Cir.), cert. denied,

(2005). “Neither is a sentencing judge’s mere summary

of sentencing law as it existed at the time sufficient, where, as

here, the summary contains no indication that the district court

wished to impose a different sentence.” See Creech,

. Accordingly, Garza has not satisfied the plain error test. No. 04-41535 -3-

Also for the first time on appeal, Garza argues that the

“felony” and “aggravated felony” provisions of

(b)(1) and (b)(2) are unconstitutional in light of Apprendi

v. New Jersey,

(2000). Garza’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

(1998). Although Garza contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi, we have repeatedly rejected such arguments on the basis

that Almendarez-Torres remains binding. See United States v.

Garza-Lopez,

(5th Cir.), cert. denied,

(2005). Garza properly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

Accordingly, Garza’s conviction and sentence are AFFIRMED.