United States v. Mejilla-Hernandez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 22, 2005 Charles R. Fulbruge III Clerk No. 04-20872 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

CARLOS MEJILLA-HERNANDEZ, also known as Clovis Andres Reyes, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-169-ALL --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:* Carlos Mejilla-Hernandez appeals his sentence imposed

following his guilty plea to illegal reentry after deportation.

He was sentenced to 29 months of imprisonment and three years of

supervised release. He argues that, in light of United States v.

Booker, 125 S. Ct. 738 (2005), his sentence is invalid because

the district court applied the sentencing guidelines as if they

were mandatory. Because Mejilla-Hernandez did not raise this

issue in the district court, we review it only for plain error.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20872 -2-

United States v. Mares, 402 F.3d 511, 513, 520-22 (5th Cir.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517);

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.

2005); United States v. Malveaux, __F.3d__, No. 03-41618, 2005 WL

1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).

As Mejilla-Hernandez concedes, he is unable to establish

plain error with regard to his Booker claim because he cannot

establish that being sentenced under a mandatory guidelines

scheme affected his substantial rights. The record does not

indicate that the district court “would have reached a

significantly different result” under a sentencing scheme in

which the guidelines were advisory only. See Mares, 402 F.3d at

520-22 ; Valenzuela-Quevedo, 407 F.3d at 733-34 .

Mejilla-Hernandez also asserts that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326 (a) and (b) are

unconstitutional. He acknowledges that his argument is

foreclosed, but he seeks to preserve the issue for possible

Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), and Shepard v. United States, 125 S. Ct. 1254 (2005).

This issue is foreclosed. See Almendarez-Torres v. United

States, 523 U.S. 224, 247 (1998); United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000).

Accordingly, the judgment of the district court is AFFIRMED.