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this opinion should not be published and is not precedent except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

June 17, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40159

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS VILLARREAL-MARTINEZ,

Defendant-Appellant.

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

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 4:03-CR-85-ALL

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

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Jose Luis Villarreal-Martinez (“Villarreal”) appeals his

conviction and sentence, following a jury trial, for illegally

re-entering the United States after having been deported and

after having been convicted of an “aggravated felony,” in

violation of 8 U.S.C. § 1326(a) and (b). The district court

sentenced him to 77 months in prison and three years of

supervised release. For the first time on appeal, Villarreal

contends that, under United States v. Booker, 125 S. Ct. 738

(2005), the district court violated his Sixth Amendment rights by
No. 04-40159

-2-

imposing a 16-level Sentencing Guidelines increase based on his

aggravated-felony conviction, without submitting that factor for

proof to the jury. 

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the

Supreme Court held that, “‘[o]ther than the fact of a prior

conviction, any fact that increases the penalty beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.’” (emphasis added). In Blakely

v. Washington, 124 S. Ct. 2531, 2537 (2004), the Supreme Court

held that “the ‘statutory maximum’ for Apprendi purposes is the

maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the

defendant.” In Booker, 125 S. Ct. at 756, the Supreme Court

extended the Blakely holding to the Guidelines, holding that

“[a]ny fact (other than a prior conviction) which is necessary to

support a sentence authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or

proved beyond a reasonable doubt.” (emphasis added). The Court

excised 18 U.S.C. § 3553(b)(1) of the Sentencing Reform Act,

rendering the guidelines effectively advisory rather than

mandatory. Id. at 764-65. Under Booker, district courts are

still required to consider the guidelines, and Booker applies to

this direct appeal. See id. at 757-69. 

A challenge under Booker that is raised for the first time

on appeal, like Villarreal’s, is reviewable only for plain error.

United States v. Mares, 402 F.3d 511 (5th Cir. 2005), petition

for cert. filed, No. 04-9517 (Mar. 31, 2005). Villarreal has not
No. 04-40159

-3-

established error, plain or otherwise, with respect to the

Sentencing Guidelines in his case, because “Booker explicitly

excepts from Sixth Amendment analysis” the fact of a prior

conviction. See United States v. Guevara, F.3d , No. 03-

11299 (5th Cir. May 2, 2005), 2005 WL 1009772 at *6.

The conviction and sentence are AFFIRMED.