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this opinion should not be published and is not precedent except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

August 17, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40804

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO CASTRO-SANTOYO,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-23-ALL

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

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Roberto Castro-Santoyo appeals the sentence imposed

following his guilty-plea conviction for being present unlawfully

in the United States following deportation. For the first time

on appeal, Castro argues that the sentence enhancing provisions

contained in 8 U.S.C. §§ 1326(b)(1) and (b)(2) are

unconstitutional and that if that if Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998), is overruled, the district

court’s application of a 16-level enhancement would be

unconstitutional under Blakely v. Washington, 542 U.S. 296, 124
No. 04-40804

-2-

S. Ct. 2531 (2004). As Castro concedes, these arguments are

foreclosed by the Supreme Court’s decision in Almendarez-Torres,

523 U.S. at 235. Apprendi v. New Jersey, 530 U.S. 466 (2000),

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). The Supreme Court’s decisions in Blakely and United

States v. Booker, 125 S. Ct. 738 (2005), did not overrule

Almendarez-Torres. See Booker, 125 S. Ct. at 756; Blakely, 124

S. Ct. at 2536-43. This court must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Dabeit, 231 F.3d at 984 (quotation

marks omitted). 

For the first time in his supplemental letter brief, Castro

argues that the district court committed plain error under Booker

by sentencing him pursuant to a mandatory application of the

sentencing guidelines. He asserts that the error was plain

because it was structural or because prejudice should otherwise

be presumed. He maintains that the district court may have given

him a lesser sentence if it had known that the guidelines were

advisory because it sentenced him at the bottom of the guidelines

range and because his family would suffer hardship if he were

incarcerated for a substantial amount of time, a factor that the

guidelines discourage courts from considering.

We review for plain error. See United States v. ValenzuelaQuevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition for cert.
No. 04-40804

-3-

filed (July 25, 2005) (No. 05-5556). The district court’s error

was not structural and prejudice is not presumed. See United

States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005);

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

2005), petition for cert. filed (July 11, 2005) (No. 05-5297). 

Although the district court may have been sympathetic to him,

Castro has not shown that he was prejudiced or that the district

court committed plain error. See United States v. Creech, 408

F.3d 264, 272 (5th Cir. 2005) (mere sympathy to defendant is

insufficient); United States v. Bringier, 405 F.3d 310, 317 & n.4

(5th Cir. 2005) (sentence at bottom of guidelines range is

insufficient), petition for cert. filed (July 26, 2005)

(No. 05-5535); see also Martinez-Lugo, 411 F.3d at 600 (plain

error analysis is the same for Sixth Amendment Booker error and

Fanfan error).

AFFIRMED.