*

Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 28, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41018

Summary Calendar

UNITED STATES OF AMERICA,

Plaint iffAppellee,

versus

CESAR CASTILLO-SEGURA,

DefendantAppellant.

------------------------------------------------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-264-1

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

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM: *

Cesar Castillo-Segura (Castillo) appeals his conviction and the sentence he received after he

pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. Castillo argues that the “felony” and

“aggravated felony” provisions in 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of

Apprendi v. New Jersey

, 530 U.S. 466 (2000), and Blakely v. Washington

, 124 S. Ct. 2531 (2004).-2-

Cast illo’s argument concerning the constitutionality of 8 U.S.C. § 1326(b) is, as he concedes,

foreclosed. See Almendarez-Torres v. United States , 523 U.S. 224 (1998); U nited States v.

Izaguirre-Flores

, 405 F.3d 270, 277-78 (5th Cir. 200 5), cert. denied , ___ S. Ct. ___, 2005 WL

786638 (Oct. 3, 2005) (No. 05-5469). To the extent that Castillo relies on U nited States v. Booker

,

125 S. Ct. 738 (2005), to support this argument, nothing in the Supreme Court’s Booker decision

affected the validity of 8 U.S.C. § 1326(b) and Almendarez-Torres

. S ee Booker

, 125 S. Ct. at 756.

Castillo also argues that t he dist rict court erred by imposing a sentence pursuant to the

mandatory federal sentencing guideline system that was held unconstitutional in Booker

. Castill o

argues that, because he argued in the district court that Blakely applied to the Guidelines, this court

reviews his Booker

argument de novo. The Government agrees.

This court, not the parties, determines the proper standard of review. See United States v.

Vontsteen

, 950 F.2d 1086, 1091 (5th Cir. 1992). We need not decide here whether Castillo’s

objection preserved the claim for review because Castillo has shown plain error. Because the district

court erred in sentencing Castillo pursuant to a mandatory guidelines scheme, he meets the first two

requirements for relief under a plain-error analysis. S ee United States v. Olano

, 507 U.S. 725, 731-

37 (1993); United States v. Valenzuela-Quevedo

, 407 F.3d 728, 733 (5th Cir. 2005), cert. denied

,

___ S. Ct. ___, 2005 WL 1811485 (Oct. 3, 2005) (No. 05-5556). Castillo has also shown that the

error affected his substantial rights by “point[ing] to statements in the record by the sentencing judge

demonstrating a likelihood that the judge sente ncing under an advisory scheme rather than a

mandatory one would have reached a significant ly different result.” U nited States v. Pennell

, 409

F.3d 240, 245 (5th Cir. 2005); United States v. Mares

, 402 F.3d 511, 517-18, 521 (5th Cir. 2005),

cert. denied , ___ S. Ct. ___ (Oct. 3, 2005) (No. 04-9517).-3-

Accordingly, Castillo’s conviction under 8 U.S.C. § 1326 is AFFIRMED; his sentence,

however, is VACATED, and the case is REMANDED for further proceedings.

AFFIRMED IN PART; VACATED IN PART; REMANDED.