* 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this opinion should not be published and is not precedent except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 12, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40591

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCO ANTONIO LERMA-VELA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-29-ALL

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

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Marco Antonio Lerma-Vela appeals his sentence imposed

following his guilty plea conviction for illegal reentry into the

United States following deportation. The Government argues that

Lerma knowingly and voluntarily waived his right to appeal his

sentence, except for a sentence in excess of the statutory

maximum or any upward departure from established guidelines. 

The prosecutor did not review the specific provisions of the

waiver during the rearraignment, and the magistrate judge did not

determine whether Lerma understood that the only exceptions to
No. 04-40591

-2-

the waiver were a sentence above the statutory maximum or an

upward departure. The magistrate judge and the Government

further confused the issue by their agreement that Lerma could

appeal an undefined “illegal sentence.” Because it cannot be

determined that the waiver was knowingly and voluntarily made by

Lerma, we do not enforce it. United States v. Robinson, 187 F.3d

516, 518 & n.2 (5th Cir. 1999); FED. R. CRIM. P. 11(b)(1)(N).

Lerma argues that the enhancement of his sentence based on

the mandatory sixteen-point adjustment to his offense level is

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

As Lerma concedes, Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998), Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, 529 U.S. 296, 124 S. Ct. 2531 (2004) held

that enhancements for prior convictions are not subject to the

Sixth Amendment jury trial requirements. Lerma’s sentence was

enhanced based only on his prior conviction. Thus, Lerma’s

sentence was not affected by a “Booker” error or a Sixth

Amendment violation. See Booker, 125 S. Ct. at 750, 769.

Sentencing a defendant pursuant to a mandatory Guidelines

scheme, without an accompanying Sixth Amendment violation,

constitutes “Fanfan” error. See United States v. Villegas,

404 F.3d 355, 364 (5th Cir. 2005). Fanfan error is subject to

the same plain error analysis set forth by this court in United

States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for

cert. filed (Mar. 31, 2005) (No. 04-9517), for Booker error. 
No. 04-40591

-3-

United States v. Martinez-Lugo, __ F.3d__, No. 04-40478, 2005 WL

1331282, at *2 (5th Cir. June 7, 2005). To the extent that Lerma

urges that Mares was wrongly decided, that argument is

unavailing. See United States v. Ruff, 984 F.2d 635, 640 (5th

Cir. 1993).

 Under the Mares analysis, Lerma has met the first two

prongs of the plain error test because Fanfan error is “error”

that is “plain.” See United States v. Valenzuela-Quevedo,

407 F.3d 728, 732-33 (5th Cir. 2005). To meet the third prong of

the analysis and show that the error affected his substantial

rights, Lerma bears the burden of showing “that the sentencing

judge--sentencing under an advisory scheme rather than a

mandatory one--would have reached a significantly different

result.” Mares, 402 F.3d at 520-21. 

Review of the sentencing hearing reflects that Lerma cannot

make the required showing. The district court made no statements

indicating that it would impose a lesser sentence if it was not

bound by the guidelines. The district court’s comment that the

guidelines are sometimes harsh and its imposition of a sentence

at the bottom of the applicable guideline range do not

demonstrate that the sentence affected Lerma’s substantial

rights. See United States v. Bringier, 405 F.3d 310, 317 n.4

(5th Cir. 2005), petition for cert. filed (July 26, 2005)

(No. 05-5535). Accordingly, the judgment of the district court

is AFFIRMED.