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this opinion should not be published and is not precedent except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

July 18, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41511

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARLOS GIRON-DELGADO,

Defendant-Appellant.

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

for the Southern District of Texas

USDC No. 1:04-CR-472-ALL

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

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM: *

Juan Carlos Giron-Delgado (Giron) pleade d guilty to illegal

reentry after deportation following a conviction for an aggravated

felony and was sentenced to 46 months of imprisonment, three years

of supervised release, and a $100 spec ial assessment that was

ordered remitted on motion of the Government.

For the first time on appeal, Geron argues that under United

States v. Booker

, 125 S. Ct. 738 (2005), he was sentenced pursuant

to an unconstitutional mandatory guideline system. He contendsNo. 04-41511

-2-

that this argument is not precluded by his appeal waiver. In his

plea agreement, Geron agreed to waive his right to appeal his

sentence except in the ca se of “(a) a sentence imposed above the

statutory maximum; or (b) an ‘upward departure’ from the Sentencing

Guidelines.” However, at rearraignment the magistrate judge

described the applicable portion of Giron’s appeal waiver as

follows: “[Y]ou give up the right to appeal your case to a higher

court, except you could appeal from an illegal sentence.” In light

of the magi strate judge’s statement and the fact that the

magistrate judge did not ask Giron whether he had read the plea

agreement, reviewed it with his attorney, understood it, or entered

it voluntarily, it cannot be said that Giron knowingly waived the

right to raise the Booker issue, and, therefore, his appeal waiver

does not bar the instant appeal. S ee U nited States v. Robinson

,

187 F.3d 516, 517 (5th Cir. 1999).

Giron correctly acknowledges th at his failure to raise the

Booker issue in the district court results in review for plain

error only. S ee United States v. Valenzuela-Quevedo

, 407 F.3d 728,

732 (5th Cir. 2005). The district court’s application of the

Sentencing Gu idelines in their mandatory form constituted error

that was plain. S ee id. at 733. However, Giron has not

established that the error affected his substantial rights because

he has not demonstrated that the record shows that the district

judge would have imposed a different or lesser sentence under a

Booker advisory regime. S ee id. Giron contends that the districtNo. 04-41511

-3-

court’s error in sentencing him pursuant to a mandatory Sentencing

Guidelines regime is of a type that should be p resumed to affect

his substantial rights. However, this argument is foreclosed. S ee

United States v. Malveaux

, __F.3d__, No. 03-41618, 2005 WL 1320362,

at *1 n.9 (5th Cir. Apr. 11, 2005). Accordingly, Giron has not met

the requirements to show plain error.

Giron also argues for the first time on appeal that the

sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2 ) are

unconstitutional on their face and as applied in light of Apprendi

v. New Jersey , 530 U.S. 466 (2000). Giron acknowledges that his

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

U.S. 224 (1998), but he seeks to preserve the i ssue for Supreme

Court review. A s Giron concedes, this issue is foreclosed. See

Apprendi

, 530 U.S. at 489-90; United States v. Dabeit

, 231 F.3d

979, 984 (5th Cir. 2000).

AFFIRMED.