* 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this opinion should not be published and is not precedent except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 26, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40688

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR MARIO DE LA ROSA-MASCORRO,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-189-ALL

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

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Hector Mario De La Rosa-Mascorro appeals his conviction and

sentence for attempted reentry of an alien after having been

deported. He argues that (1) the district court erred by

increasing his base offense level 16 points under U.S.S.G. 

§ 2L1.2(b)(1)(A)(vii) because his prior conviction for

transporting illegal aliens was not an “alien smuggling offense”;

(2) the provisions of 8 U.S.C. § 1326(b) are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) his
No. 04-40688

-2-

sentence is unconstitutional under United States v. Booker, 125

S. Ct. 738 (2005), because it was imposed pursuant to a mandatory

guidelines scheme. 

De La Rosa’s arguments that his prior conviction for

transporting illegal aliens was not an alien-smuggling offense

and that the provisions of 8 U.S.C. § 1326(b) are

unconstitutional are foreclosed by United States v. SolisCampozano, 312 F.3d 164 (5th Cir. 2002), and Almendarez-Torres v.

United States, 523 U.S. 224 (1998).

De La Rosa first challenges the Booker error as structural

in nature and argues that prejudice should be presumed. This

court rejected that argument in United States v. Martinez-Lugo,

___ F.3d ___, 2005 WL 1331282 *2 (5th Cir. June 7, 2005), and

determined that an unpreserved error challenging the mandatory

nature of the guidelines is subject to a plain-error analysis. 

Because De La Rosa did not raise this issue in the district

court, the remaining argument is subject to a plain-error

analysis. United States v. Mares, 402 F.3d 511, 520 (5th Cir.

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

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.

2005). 

In order to establish that he is entitled to relief under a

plain-error analysis, De La Rosa must show that an error was

committed, which was plain, and that the error affected his

substantial rights. United States v. Olano, 507 U.S. 725, 731-37
No. 04-40688

-3-

(1993). If these factors are established, the decision to

correct the error is within the sound discretion of this court,

which will not be exercised unless the error seriously affects

the fairness, integrity, or public reputation of judicial

proceedings. Id. at 736. 

The district court committed error that is plain by

sentencing De La Rosa under a mandatory sentencing guidelines

scheme. Valenzuela-Quevedo, 407 F.3d at 733. To establish that

his substantial rights were affected, De La Rosa bears the burden

of establishing that the sentencing court would have reached a

different result under an advisory scheme. Mares, 402 F.3d at

521. De La Rosa meets his burden. The district court

unequivocally stated that it would impose a lesser sentence if it

were not bound by the guidelines. Accordingly, De La Rosa’s

conviction is AFFIRMED. His sentence is VACATED, and the matter

is REMANDED for resentencing.