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this opinion should not be published and is not precedent except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

November 9, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41442

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BAIRON JESUS TROCHEZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-497-ALL

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

Before DAVIS, SMITH, and DENNIS, Circuit Judges. 

PER CURIAM:*

Bairon Jesus Trochez appeals his guilty plea conviction and

sentence for illegal reentry. For the first time on appeal,

Trochez argues that his sentence violates United States v.

Booker, 125 S. Ct. 738 (2005), insofar as he was sentenced under

the mandatory Sentencing Guideline regime, and that the

sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Because of misstatements by the magistrate judge and the
No. 04-41442

-2-

district court regarding the scope of the sentence appeal waiver,

we pretermit the question whether this appeal is barred by the

waiver.

Trochez’s Booker claim fails because he cannot show that the

alleged error affected his substantial rights. See

United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th

Cir.), cert. denied, 126 S. Ct. 267 (2005); United States v.

Mares, 402 F.3d 511, 521 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005). The sentencing hearing transcripts are silent regarding

whether the district court would have reached a different

conclusion had the Guidelines been advisory. Moreover, the fact

that the district court imposed the minimum guideline sentence

is, standing alone, no indication that the court would have

reached a different conclusion under an advisory scheme. See

United States v. Bringier, 405 F.3d 310, 318 (5th Cir.), cert.

denied, 126 S. Ct. 264 (2005). Trochez therefore cannot carry

his burden of showing that the result likely would have been

different had he been sentenced under the advisory scheme, and he

cannot show plain error that affected his substantial rights. 

See Mares, 402 F.3d at 522.

He argues for the first time on appeal that the sentencing

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional

in light of Apprendi and Justice Thomas’s statements in his

concurrence to the opinion in Shepard v. United States, 125

S. Ct. 1254, 1263 (2005). Trochez acknowledges that his argument
No. 04-41442

-3-

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

(1998), but he seeks to preserve the issue for Supreme Court

review. Apprendi and Shepard did not overrule Almendarez-Torres. 

See Apprendi, 530 U.S. at 489-90; Shepard, 125 S. Ct. at 1262-63. 

We must follow Almendarez-Torres “unless and until the Supreme

Court itself determines to overrule it.” United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (internal quotation

marks and citation omitted). 

AFFIRMED.