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this opinion should not be published and is not precedent except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

September 29, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-40128

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELEAZAR TOMAS MENDEZ, 

also known as Antonio Rosales Jimenez,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-455-ALL

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

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Eleazar Tomas Mendez pleaded guilty to unlawful presence in

the United States after deportation following an aggravated

felony conviction. He was sentenced to 33 months of imprisonment

and three years of supervised release. He appeals his conviction

and sentence.

For the first time on appeal, Mendez contends that he was

illegally sentenced pursuant to the formerly mandatory Sentencing

Guidelines regime, in violation of United States v. Booker, 125
No. 05-40128

-2-

S. Ct. 738 (2005). Mendez’s plea agreement contained a waiverof-appeal provision in which he waived, inter alia, “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. Mendez

contends that this waiver provision is not enforceable because,

at his rearraignment, the magistrate judge incorrectly told him

that he retained the right to appeal an “illegal sentence.” We

agree. Because the magistrate judge inaccurately described the

waiver provision, Mendez’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 (5th Cir. 1999). 

Mendez contends that this court should review his Booker

claim de novo and apply a harmless error standard. However, he

concedes that these arguments are foreclosed by United States v.

Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517), and that he must show plain error. 

See id. at 520. 

The district court’s application of the guidelines in their

mandatory form constituted error that is “plain.” Id. at 520-21. 

However, as Mendez correctly concedes, he cannot establish that

the error “affected the outcome of the district court

proceedings[,]” i.e., “that the sentencing judge--sentencing

under an advisory scheme rather than a mandatory one--would have
No. 05-40128

-3-

reached a significantly different result.” Id. at 521 (internal

quotation marks and citation omitted). Alternatively, Mendez

contends that the district court’s error, sentencing him under a

mandatory guidelines regime, was structural and that prejudice

should be presumed. Mendez correctly concedes that this argument

is foreclosed. See United States v. Malveaux, 411 F.3d 558, 560

n.9 (5th Cir. 2005), petition for cert. filed (July 11, 2005)

(No. 05-5297). Accordingly, Mendez has not satisfied the

requirements under the plain error standard.

Mendez also asserts, for the first time on appeal, that the

“felony” and “aggravated felony” provisions of 8 U.S.C. 

§ 1326(b) are unconstitutional. As Mendez concedes, this

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224 (1998), which this court must follow "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)

(internal quotation marks and citation omitted), petition for

cert. filed (July 22, 2005)(No. 05-5469). 

The conviction and sentence are AFFIRMED.