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this opinion should not be published and is not precedent except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

February 23, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-40151

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE PAREDES-GARCIA, also known as Jose Plarales,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:04-CR-744-ALL

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

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Paredes-Garcia (Paredes) appeals his guilty-plea

conviction and sentence for illegally reentering the United

States after a previous deportation, in violation of 8 U.S.C. 

§ 1326. Paredes was sentenced to 41 months in prison and two

years of supervised release. We need not decide whether

Paredes’s appeal is barred by his plea agreement because his

issues are either foreclosed or lack arguable merit. 

For the first time on appeal, Paredes contends that his

sentence should be vacated because it was imposed pursuant to an
No. 05-40151

-2-

unconstitutional mandatory sentencing guidelines regime, contrary

to United States v. Booker, 543 U.S. 220 (2005). This is an

alleged “Fanfan” error. See United States v. Martinez-Lugo, 411

F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005). 

This court’s review is for plain error. See id.; United States

v. Mares, 402 F.3d 511, 520-21 (5th Cir.), cert. denied, 126

S. Ct. 43 (2005). 

 Although the application of a mandatory guidelines regime

was error that was “plain,” Paredes concedes that he cannot carry

his burden of showing that the “Fanfan” error affected his

sentence. See Martinez-Lugo, 411 F.3d at 600. There is nothing

in the record to suggest that the district court felt constrained

by the mandatory Guidelines in imposing the sentence. See Mares,

402 F.3d at 522; see also United States v. Bringier, 405 F.3d

310, 317 n.4 (5th Cir.) (minimum guideline sentence, without

more, insufficient to carry third prong of plain-error test),

cert. denied, 126 S. Ct. 264 (2005). Insofar as Paredes argues

that the error was a “structural” one that affected the entire

“framework” of the proceeding against him, and that plain-error

prejudice should be presumed, we have rejected such contentions. 

See United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.),

cert. denied, 126 S. Ct. 194 (2005). Paredes raises the “Fanfan”

claim only to preserve it for further review.

Paredes’s challenge to the constitutionality of § 1326(a)

and (b) is foreclosed by Almendarez-Torres v. United States, 523
No. 05-40151

-3-

U.S. 224, 235 (1998). Although Paredes contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding. See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Paredes

properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

The district court’s judgment is AFFIRMED.