USA v. Rodriguez-Santos

Filing 920060828

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 28, 2006 Charles R. Fulbruge III Clerk No. 05-40964 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARMANDO RODRIGUEZ-SANTOS, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-187-ALL -------------------Before DAVIS, SMITH, and WIENER, Circuit Judges.. PER CURIAM:* Armando Rodriguez-Santos appeals his guilty-plea conviction and 37-month sentence for illegal reentry. He argues that the

district court violated the spirit of United States v. Booker, 543 U.S. 220 (2005), when it sentenced him after appearing to disagree with the Guidelines and that the district court mistakenly believed that the Guidelines were mandatory. He also

argues that the enhancement provisions of 8 U.S.C. § 1326(b) are

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40964 -2unconstitutional in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Rodriguez-Santos did not raise his argument concerning the mandatory application of the Guidelines in the district court. Therefore, his sentence is reviewed for plain error. See United

States v. Mares, 402 F.3d 511, 520-21 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005); see also United States v. Jones, 444 F.3d 430, 436 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006). Even

if the district court believed it was bound by the Guidelines, Rodriguez-Santos has not shown he would have received a more lenient sentence otherwise. Therefore, Rodriguez-Santos has See United States v.

failed to demonstrate plain error.

Robles-Vertiz, 442 F.3d 350, 353 (5th Cir. 2006), petition for cert. filed (May 30, 2006) (No. 05-11285). Rodriguez-Santos's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Rodriguez-Santos 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, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). AFFIRMED.