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this opinion should not be published and is not precedent except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

August 17, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41723

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR NAVARRO-GALLARDO,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-588-ALL

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

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Oscar Navarro-Gallardo appeals his sentence imposed

following his guilty plea conviction for illegal reentry into the

United States following deportation. Navarro was sentenced to a

term of imprisonment of 57 months, to be followed by a three-year

term of supervised release. 

Navarro argues that he was sentenced under the

unconstitutional mandatory guidelines system and that the error

constitutes plain error in light of United States v. Booker,
No. 04-41723

-2-

125 S. Ct. 738 (2005). He argues that the fact that the district

court imposed a sentence at the bottom of the guidelines range

shows that the error had an effect on his substantial rights. 

Navarro further argues that it should be presumed that his

substantial rights were affected.

We review for plain error. See United States v. Mares, 402

F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517). Sentencing a defendant pursuant to a

mandatory Guidelines scheme, without an accompanying Sixth

Amendment violation, constitutes “Fanfan” error. See United

States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).

The court has rejected the argument urged by Navarro that

Fanfan error is structural and presumptively prejudicial, holding

that it is instead subject to the same plain error analysis set

forth in Mares. See United States v. Martinez-Lugo, 

411 F.3d 597, 601 (5th Cir. 2005).

Navarro has met the first two prongs of the plain error test

because Fanfan error is “error” that is “plain.” See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.

2005), petition for cert. filed (July 25, 2005) (No. 05-5556). 

In order to meet the third prong of the analysis and show that

the error affected his substantial rights, Navarro bears the

burden of showing that “that the sentencing judge--sentencing

under an advisory scheme rather than a mandatory one--would have

reached a significantly different result.” Mares, 402 F.3d at
No. 04-41723

-3-

520-21. Navarro has failed to make that showing and, thus, has

failed to show plain error. See United Stares v. Bringier,

405 F.3d 310, 317 n.4 (5th Cir. 2005), petition for cert. filed

(July 26, 2005) (No. 05-5535). 

Navarro argues for the first time on appeal and pursuant to

Apprendi v. New Jersey, 530 U.S. 466 (2000) that the sentencing

provisions of § 1326(b) are unconstitutional. He concedes that

this issue is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), and he raises it solely to preserve its

further review by the Supreme Court. 

Almendarez-Torres, 523 U.S. at 235, held that a prior

conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and

not a separate criminal offense. Apprendi did not overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also

Blakely v. Washington, 124 S. Ct. 2531, 2536, 2548 (2004). 

Booker did not overrule Almendarez-Torres. See Booker, 125

S. Ct. at 756. This court does not have the authority to

overrule Almendarez-Torres. See United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000). This argument is therefore

foreclosed. 

AFFIRMED.