United States v. Rodriguez-Santos

* 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this opinion should not be published and is not precedent except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
F I L E D
August 28, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40964
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO RODRIGUEZ-SANTOS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-187-ALL
--------------------
Before DAVIS, SMITH, and WIENER, Circuit Judges..
PER CURIAM:*
Armando Rodriguez-Santos appeals his guilty-plea conviction
and 37-month sentence for illegal reentry. He argues that the
district court violated the spirit of United States v. Booker,
543 U.S. 220 (2005), when it sentenced him after appearing to
disagree with the Guidelines and that the district court
mistakenly believed that the Guidelines were mandatory. He also
argues that the enhancement provisions of 8 U.S.C. § 1326(b) are

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No. 05-40964
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unconstitutional in the light of Apprendi v. New Jersey, 530 U.S.
466 (2000).
Rodriguez-Santos did not raise his argument concerning the
mandatory application of the Guidelines in the district court.
Therefore, his sentence is reviewed for plain error. See United
States v. Mares, 402 F.3d 511, 520-21 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005); see also United States v. Jones, 444 F.3d
430, 436 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006). Even
if the district court believed it was bound by the Guidelines,
Rodriguez-Santos has not shown he would have received a more
lenient sentence otherwise. Therefore, Rodriguez-Santos has
failed to demonstrate plain error. See United States v.
Robles-Vertiz, 442 F.3d 350, 353 (5th Cir. 2006), petition for
cert. filed (May 30, 2006) (No. 05-11285).
Rodriguez-Santos’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rodriguez-Santos contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi, 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).
AFFIRMED.

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