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this opinion should not be published and is not precedent except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

October 7, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-40053

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO CASTRO-AGUILAR,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:04-CR-702-ALL

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

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Armando Castro-Aguilar (“Castro”) appeals his guilty-plea

conviction of having been found in the United States after

deportation, without having obtained the consent of the Attorney

General or the Secretary of Homeland Security to re-enter the

country, and after having been convicted of an “aggravated

felony,” in violation of 8 U.S.C. § 1326(a) and (b). The

district court sentenced Castro to 46 months of imprisonment

followed by two years of supervised release and imposed the

mandatory assessment. The Government expressly declines to seek
No. 05-40053

-2-

enforcement of the waiver provision in Castro’s plea agreement;

therefore, this court will not enforce it. See United States v.

Rhodes, 253 F.3d 800, 804 (5th Cir. 2001). 

For the first time on appeal, Castro argues that the

district court erred by imposing sentence pursuant to the

formerly mandatory sentencing guidelines regime, in violation of

United States v. Booker, 125 S. Ct. 738 (2005). Castro’s

arguments that this error is either structural or presumptively

prejudicial are foreclosed. See United States v. Martinez-Lugo,

411 F.3d 597, 601 (5th Cir. 2005).

Sentencing a defendant pursuant to a mandatory guidelines

regime, standing alone, constitutes “Fanfan” error, and such an

error is “plain.” See id. at 601. Castro contends that this

error affected his substantial rights because the district court

sentenced him at the bottom of the guideline range and had no

discretion under the mandatory scheme to impose a lower sentence. 

However, the court’s imposition of a sentence at the bottom of

the guideline range is, standing alone, no indication that the

sentencing judge would have reached a different conclusion under

an advisory scheme. See United States v. Bringier, 405 F.3d 310,

317-18 n.4 (5th Cir. 2005). There is no indication in the

record, either in the sentencing judge’s statements or otherwise,

that the district court would have imposed a different sentence

under an advisory guidelines scheme. Castro has not shown that
No. 05-40053

-3-

the error affected his substantial rights and, thus, he has not

demonstrated plain error. See Martinez-Lugo, 411 F.3d at 601.

Castro also argues that, under Apprendi v. New Jersey, 530

U.S. 466 (2000), and its progeny, 8 U.S.C. § 1326(b) is

unconstitutional because it permits a sentencing judge to

increase a sentence beyond the statutory maximum based on a

factor that need not be submitted to a jury for proof or admitted

by the defendant. Castro concedes that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998), but he seeks to preserve the issue for possible

Supreme Court review. This court must follow Almendarez-Torres

“‘unless and until the Supreme Court itself determines to

overrule it.’” United States v. Izaguirre-Flores, 405 F.3d 270,

277-78 (5th Cir. 2005) (citation omitted). 

AFFIRMED.