* 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this opinion should not be published and is not precedent except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 4, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-20399

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO ALBARENGA-VILLALOBO,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 4:03-CR-467-ALL

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

This court affirmed the sentence of Alfredo AlbarengaVillalobo (Albarenga). United States v. Albarenga-Villalobo, No.

04-20399 (5th Cir. Dec. 17, 2004) (unpublished). The Supreme

Court vacated and remanded for further consideration in light of

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

Albarenga pleaded guilty to illegal re-entry by a previously

deported alien. The district court sentenced Albarenga to 58
No. 04-20399

-2-

months of imprisonment and three years of supervised release. 

In his original appeal, Albarenga argued that the “felony” and

“aggravated felony” provisions of § 1326(b) are unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). 

Albarenga also argued that, if Almendarez-Torres v. United

States, 523 U.S. 224 (1998), were overruled and given the Supreme

Court’s ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004),

his sentencing enhancement on the basis of prior convictions

would be unconstitutional. At the time, Albarenga acknowledged

that his arguments were foreclosed, but he raised them to

preserve possible Supreme Court review. We affirmed.

Because the question whether the sentence was imposed

legally in light of the rule in Booker has been asserted for the

first time on appeal, our review is for plain error, at most. 

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33

(5th Cir. 2005), petition for cert. filed (July 25, 2005) (No.

05-5556); United States v. Mares, 402 F.3d 511, 520 (5th Cir.

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

In United States v. Taylor, 409 F.3d 675, 677 (5th Cir. 2005), we

held that because a defendant had not demonstrated plain error,

“it is obvious that the much more demanding standard for

extraordinary circumstances warranting review of an issue raised

for the first time in a petition for certiorari, cannot be

satisfied.” It is not necessary to determine when Albarenga
No. 04-20399

-3-

first raised the Booker issue because, as will be shown below, he

has not demonstrated plain error. 

After Booker, “[i]t is clear that application of the

Guidelines in their mandatory form constitutes error that is

plain.” Valenzuela-Quevedo, 407 F.3d at 733. Albarenga argues

that the error affected his substantial rights because it was

structural or because prejudice should otherwise be presumed. 

Albarenga concedes that these arguments are foreclosed. See

United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),

petition for cert. filed (July 11, 2005) (No. 05-5297).

To satisfy the plain-error test in light of Booker,

Albarenga must demonstrate that his substantial rights were

affected by the error. United States v. Infante, 404 F.3d 376,

395 (5th Cir. 2005). Albarenga admits that he cannot make a

particularized showing of an effect on his substantial rights or

that the record indicates in any way that the district court

would have imposed a lower sentence under an advisory sentencing

scheme. Accordingly, there is no basis for concluding that the

district court would have imposed a lower sentence under an

advisory sentencing regime. See Mares, 402 F.3d at 522. 

We conclude that nothing in the Supreme Court’s Booker

decision requires us to change our prior affirmance in this case. 

We reinstate our judgment affirming Albarenga’s conviction and

sentence. 

AFFIRMED.