United States v. Malacara

* 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this opinion should not be published and is not precedent except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
April 17, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-10538
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS BUILTRON MALACARA, also known as Jose Marquez,
also known as Serferino Aousa, also known as George Matta,
also known as Juan Button, also known as Juan Marquez, also
known as Juan Jose Marquez, also known as Juan Rodriguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-181-ALL
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Luis Builtron Malacara appeals his guilty-plea
conviction and 77-month sentence for illegal reentry into the
United States following deportation. Builtron Malacara argues
that the felony and aggravated felony provisions of 8 U.S.C.
§ 1326(b) are unconstitutional. His constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Builtron Malacara contends that

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No. 05-10538
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Almendarez-Torres 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). Builtron
Malacara properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but he raises
it here to preserve it for further review.
For the first time on appeal, Builtron Malacara argues that
the district court erred in enhancing his sentence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his prior Texas aggravated robbery
conviction. Our review is limited to plain error. United States
v. Gonzalez-Chavez, 432 F.3d 334, 336 (5th Cir. 2005).
Under § 2L1.2(b)(1)(A)(ii), a defendant’s base offense level
is increased by 16 levels if he was previously deported after a
conviction of a crime of violence. Robbery is an enumerated
crime of violence in the application notes to § 2L1.2. § 2L1.2,
comment. (n.1(B)(iii)). Builtron Malacara has not shown plain
error in the increase of his offense level based on his prior
aggravated robbery conviction. See United States v.
Santiesteban-Hernandez, 469 F.3d 376, 378, 381 (5th Cir. 2006).
AFFIRMED.

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