* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

October 11, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41437

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MARTHA GEORGETTE MARISCAL-LUGO

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-337-ALL

--------------------

Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit

Judges.

PER CURIAM:*

Martha Georgette Mariscal-Lugo pleaded guilty to being an

alien unlawfully found in the United States after deportation in

violation of 8 U.S.C. §§ 1326(a) and (b) and was sentenced to 37

months of imprisonment and three years of supervised release. 

She appeals her conviction and sentence.

For the first time on appeal, Mariscal-Lugo contends that

she was illegally sentenced pursuant to the formerly mandatory

sentencing guidelines regime, in violation of United States v.
No. 04-41437

-2-

Booker, 125 S. Ct. 738 (2005). Mariscal-Lugo’s plea agreement

contained a waiver-of-appeal provision by which she waived “the

right to appeal the sentence imposed or the manner in which it

was determined,” except for a sentence above the statutory

maximum or an upward departure from the applicable guidelines

range. Mariscal-Lugo contends that this waiver provision is not

enforceable because, at her rearraignment, the magistrate judge

incorrectly told her that she retained the right to appeal an

“illegal sentence.” We agree. Because the magistrate judge

inaccurately described the waiver provision, Mariscal-Lugo’s

waiver cannot be deemed knowing and voluntary with respect to an

“illegal sentence.” See FED. R. CRIM. P. 11(b)(1)(N); United

States v. Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).

Sentencing a defendant pursuant to a mandatory guidelines

scheme, standing alone, constitutes “Fanfan” error, and such an

error is “plain.” See Booker, 125 S. Ct. at 769; United States

v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005). 

Mariscal-Lugo makes no argument, and “there is no indication in

the record from the sentencing judge’s remarks or otherwise” that

the court would have imposed a different sentence under an

advisory guidelines regime. United States v. Mares, 402 F.3d

511, 522 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005)(No. 04-9517). Because Mariscal-Lugo has not shown that the

error affected her “substantial rights,” see id. at 521, she has

not demonstrated plain error.
No. 04-41437

-3-

Mariscal-Lugo also argues that, under Apprendi v. New

Jersey, 530 U.S. 466 (2000), and its progeny, 8 U.S.C. § 1326(b)

is unconstitutional because it permits a sentencing judge to

increase a sentence beyond the statutory maximum based on a

factor that need not be submitted to a jury for proof or admitted

by the defendant. Mariscal-Lugo concedes that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998), but she seeks to preserve the issue for possible

Supreme Court review. This court must follow Almendarez-Torres

“‘unless and until the Supreme Court itself determines to

overrule it.’” United States v. Izaguirre-Flores, 405 F.3d 270,

277-78 (5th Cir. 2005) (citation omitted). 

AFFIRMED.