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. 04-40889

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL HERNANDEZ-CARTAGENA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-228-ALL

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

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:

Manuel Hernandez-Cartagena pleaded guilty to an indictment

charging him with being present illegally in the United States

following deportation. Because Hernandez was convicted prior to

deportation of attempted sexual abuse of a minor, he was

sentenced, under 8 U.S.C. § 1326(b), to a 50-month term of

imprisonment and to a three-year period of supervised release. 

Hernandez contends that his sentence should be vacated

because it was imposed pursuant to an unconstitutional mandatory

guidelines system, contrary to United States v. Booker, 125

S. Ct. 738, 768–69 (2005), a so-called Fanfan error. See United
No. 04-40889

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States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005). 

Hernandez concedes that this court’s review is for plain error. 

See id.; United States v. Mares, 402 F.3d 511, 520–21 (5th Cir.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). 

Under the third-prong of the plain-error analysis, Hernandez must

show that the error affected his substantial rights in that it

“affected the outcome of the district court proceedings.” 

Martinez-Lugo, 411 F.3d at 600 (quotation marks omitted). 

Hernandez does not contend that the error affected the outcome of

the proceedings and there is nothing in the record to suggest

otherwise. See United States v. Inman, 411 F.3d 591, 595 (5th

Cir. 2005); United States v. Infante, 404 F.3d 376, 395 (5th Cir.

2005). 

Hernandez contends instead that prejudice should be presumed

or that a showing of prejudice should not be required because the

error was “structural and insusceptible of harmless error

analysis.” An identical argument was rejected in Martinez-Lugo. 

See Martinez-Lugo, 411 F.3d at 601; see also United States v.

Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005), petition for

cert. filed (July 11, 2005) (No. 05-5297). Hernandez has not

shown that the district court plainly erred by sentencing him

pursuant to a mandatory guideline scheme. See Martinez-Lugo, 411

F.3d at 601.

Hernandez contends that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(2) are unconstitutional in light
No. 04-40889

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of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and that he

should be resentenced in light of Blakely v. Washington, 124

S. Ct. 2531 (2004). Hernandez recognizes that relief is

foreclosed; he raises the issue to preserve it for further

review. Apprendi did not overrule Almendarez-Torres. See

Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000); see also Shepard v. United States, 125

S. Ct. 1254, 1262 (2005). This court must follow AlmendarezTorres “unless and until the Supreme Court itself determines to

overrule it.” Dabeit, 231 F.3d at 984 (quotation marks omitted).

The judgment is AFFIRMED.