* 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that this opinion should not be published and is not precedent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 18, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-10055

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE CRUZ GONZALEZ-RENTERIA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:04-CR-275-ALL

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

Before BENAVIDES, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Jose Cruz Gonzalez-Renteria appeals his conviction and

sentence for illegal reentry. He first contends that his

sentence is invalid in light of United States v. Booker, 125 S.

Ct. 738 (2005) because the sentencing judge applied the

sentencing guidelines as if they were mandatory. Because

Gonzalez-Renteria did not raise this issue in the district court,

we review it only for plain error. United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005). Although
No. 05-10055

-2-

there was an error under Booker, Gonzalez-Renteria fails to

demonstrate that the district court would have imposed a

different sentence under advisory guidelines. Id. at 733. He

therefore fails to show that the error affected his substantial

rights as is necessary under the plain-error standard. See id.;

United States v. Mares, 402 F.3d 511, 521-22 (5th Cir. 2005),

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

Gonzalez-Renteria argues that the district court plainly

erred in calculating his criminal history points by refusing to

treat his prior sentence for failure to identify as a “related

case” under U.S.S.G. § 4A1.2(a)(2). Given that the failure-toidentify offense and the instant illegal reentry offenses did not

occur simultaneously, they were not committed against the same

victim, they were not identical offenses, and they were not

committed at the same geographic location, it cannot be said that

the district court erred in determining that these were separate

offenses for purposes of calculating Gonzalez-Renteria’s criminal

history points. United States v. Moreno-Arredondo, 255 F.3d 198,

201, 207 (5th Cir. 2001).

Gonzalez-Renteria argues pursuant to Apprendi v. New Jersey,

530 U.S. 466 (2000), that Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998), should be overruled. He concedes that his

constitutional argument is contrary to the Supreme Court’s

decision in Almendarez-Torres, but he argues that AlmendarezTorres was wrongly decided.
No. 05-10055

-3-

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). The Supreme Court’s recent decisions in Shepard

v. United States, 125 S. Ct. 1254, 1262-63 & n.5 (2005), Booker,

and Blakely v. Washington, 542 U.S. 2961, 124 S. Ct. 2531 (2004),

also did not overrule Almendarez-Torres. We therefore must

follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.” Dabeit, 231 F.3d at 984

(internal quotation marks and citation omitted). The judgment of

the district court is AFFIRMED.