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this opinion should not be published and is not precedent except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

December 14, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41370

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HENRY CRUZ-BARRAZA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-253-ALL

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

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Henry Cruz-Barraza appeals his guilty-plea conviction and

sentence for illegal reentry into the United States following

deportation after having been convicted of an aggravated felony

in violation of 8 U.S.C. § 1326(a) and (b). The Government has

moved to dismiss the appeal, arguing that the sentence appeal

waiver in Cruz-Barraza’s plea agreement bars his appeal. 

Our review of the record indicates that, contrary to the

plea agreement, the magistrate judge and the district court
No. 04-41370

-2-

advised Cruz-Barraza that he retained the right to appeal an

illegal sentence. Thus it cannot be said that Cruz-Barraza

knowingly and voluntarily waived his appeal rights. 

Consequently, we hold that the appellate-waiver provision in

Cruz-Barraza’s plea agreement is unenforceable. The Government’s

motion to dismiss the appeal is DENIED. 

Cruz-Barraza argues, for the first time, that his sentence

pursuant to a mandatory sentencing guidelines regime was

unconstitutional in light of United States v. Booker, 125 S. Ct.

738 (2005). The parties agree that plain error review applies.

The mandatory application of the guidelines is an error that

is plain. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733

(5th Cir.), cert. denied, 126 S. Ct. 267 (2005). To prevail,

however, Cruz-Barraza must show that his substantial rights have

been affected. Id. To meet this burden, he must establish that

the error “affected the outcome of the district court

proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725,

734 (1993)). 

Nothing in the record indicates that the district court

would have imposed a lesser sentence had the guidelines been

advisory. Accordingly, Cruz-Barraza’s argument fails.

Cruz-Barraza next claims, for the first time, that the

felony and aggravated felony provisions of 8 U.S.C. § 1326(b) are

unconstitutional. Cruz-Barraza’s constitutional challenge to 8

U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United
No. 04-41370

-3-

States, 523 U.S. 224, 235 (1998). Although Cruz-Barraza 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 AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410

F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). 

Cruz-Barraza 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. 

Cruz-Barraza has moved for leave to supplement the record on

appeal and to file a supplemental brief. In his supplemental

brief, Cruz-Barraza seeks to argue that the district court

plainly erred by applying a 16-level enhancement to his sentence

pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on his prior

conviction for burglary of a habitation. 

Cruz-Barraza’s motion and supplemental brief contain new

arguments, raise new issues, do not supplement the initial brief

as contemplated by the rules, and are not reply briefs. See FED.

R. APP. P. 28(a), (c), (j); 5TH CIR. R. 28.5. Accordingly, they

would not properly supplement the record or briefs. Moreover,

because issues not raised in an appellant’s initial brief as

required by FED. R. APP. P. 28 are deemed waived, he has waived

the arguments raised in his motion and supplemental brief. See
No. 04-41370

-4-

United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005). 

Cruz-Barraza’s motions are DENIED.

Cruz-Barraza has failed to raise a meritorious issue on

appeal. Accordingly, the district court’s judgment is AFFIRMED.

AFFIRMED; MOTIONS DENIED.