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this opinion should not be published and is not precedent except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

February 23, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-40133

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANGEL RUIZ-ROSAS,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:04-CR-653-ALL

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

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Angel Ruiz-Rosas pleaded guilty to a one-count indictment

charging him with being found in the United States following

deportation. The district court sentenced Ruiz-Rosas to 57

months in prison and a two-year term of supervised release. 

Ruiz-Rosas’s plea agreement explicitly waived his “right to have

facts that the law makes essential to the punishment” charged in

the indictment or proved beyond a reasonable doubt and granted

his consent to be sentenced pursuant to the Guidelines. We need
No. 05-40133

-2-

not decide the applicability of the waiver in this case because

the issues that Ruiz-Rosas raises are either foreclosed or lack

arguable merit. 

Ruiz-Rosas argues for the first time on appeal that his

sentence was imposed illegally in light of United States v.

Booker, 543 U.S. 220 (2005). This court’s review is for plain

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

732-33 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005); United

States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126

S. Ct. 43 (2005).

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. To satisfy the

plain error test in light of Booker, Ruiz-Rosas must demonstrate

that his substantial rights were affected by the error. United

States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005). There is

nothing in the record indicating that the district court would

have imposed a different sentence under an advisory sentencing

guidelines scheme. United States v. Bringier, 405 F.3d 310, 317

n.4 (5th Cir.), cert. denied, 126 S. Ct. 264 (2005). Ruiz-Rosas

argues that application of the plain error standard is contrary

to the plain error standard enunciated in United States v.

Dominguez Benitez, 542 U.S. 74 (2004). Ruiz-Rosas’s challenge to

the showing required under Mares and Bringier is unavailing as

one panel may not overrule the decision of a prior panel absent
No. 05-40133

-3-

en banc reconsideration or a superseding contrary decision of the

Supreme Court. See United States v. Eastland, 989 F.2d 760, 768

n.16 (5th Cir. 1993). 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. 

Ruiz-Rosas’s constitutional challenge to 8 U.S.C. § 1326(b)

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

224, 235 (1998). Although Ruiz-Rosas contends that AlmendarezTorres was incorrectly decided and that a majority of the Supreme

Court would overrule Almendarez-Torres in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding. 

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005). Ruiz-Rosas properly

concedes that his argument is foreclosed in light of AlmendarezTorres and circuit precedent, but he raises it here to preserve

it for further review.

AFFIRMED.