* 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this opinion should not be published and is not precedent except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. 04-40888

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO CESAR REYNA-LOPEZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-2-1

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

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Julio Cesar Reyna-Lopez (Reyna) pleaded guilty to possession

with intent to distribute more than 50 kilograms (specifically,

93.4 kilograms) of marijuana, and he was sentenced to 30 months

of imprisonment, three years of supervised release, and a $100

special assessment that was ordered remitted on motion of the

Government. 

Reyna argues for the first time on appeal that, in light of

the Supreme Court’s decision in United States v. Booker, 125 S.
No. 04-40888

-2-

Ct. 738 (2005), his sentence should be vacated and his case

should be remanded for resentencing because the district court

pronounced sentence under a regime in which the Federal

Sentencing Guidelines were considered mandatory. He contends

that he can show plain error because the district court’s error

was structural and, in the alternative, because the error should

be presumed to have affected his substantial rights. However,

these arguments are foreclosed. See United States v. MartinezLugo, 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). 

Reyna also argues that there is a reasonable probability

that the district court would have imposed a lower sentence if

application of the Sentencing Guidelines had not been mandatory. 

In support of this argument, he notes the fact that the district

court sentenced him at the low end of the guideline range and the

fact that mitigating circumstances existed. 

The district court’s imposition of Reyna’s sentence pursuant

to a mandatory application of the Sentencing Guidelines

constituted an error that was plain. See Martinez-Lugo, 411 F.3d

at 600. However, Reyna’s sentence at the low end of the

guideline range does not alone indicate that the district court

would have sentenced him differently under an advisory sentencing

scheme. See United States v. Bringier, 405 F.3d 310, 318 n.4

(5th Cir. 2005), petition for cert. filed (July 26, 2005)
No. 04-40888

-3-

(No. 05-5535). Furthermore, nothing in the sentencing transcript

indicates that the district court would sentence Reyna

differently if application of the Guidelines were not mandatory. 

Accordingly, Reyna has failed to show that the district court’s

plain error affected his substantial rights. See Martinez-Lugo,

411 F.3d at 600-01.

Reyna also argues for the first time on appeal that the

statute of conviction, 21 U.S.C. § 841, is unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466 (2000). Reyna concedes that

his argument is foreclosed by our opinion in United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). He raises the

issue only to preserve it for further review. Accordingly,

Reyna’s argument is foreclosed.

The judgment of the district court is AFFIRMED. The

Government’s motion for summary affirmance in lieu of filing an

appellee’s brief is GRANTED.