144 F. App'x 434

UNITED STATES of America, Plaintiff-Appellee, v. Arazael Ivan ZAVALA-FLORES, also known as Arazael Ivan Zavala Flores, Defendant-Appellant.

No. 04-40819.

Conference Calendar.

United States Court of Appeals, Fifth Circuit.

Decided Aug. 17, 2005.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Assistant Federal Public Defender, Sandra Zamora Zayas, Assistant Federal Public Defender, Molly E. Odom, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM: *

Arazael Ivan Zavala-Flores (Zavala) appeals the 57-month sentence imposed after he pleaded guilty to one count of illegal reentry into the United States. See 8 U.S.C. § 1326.

Zavala contends that 8 U.S.C. § 1326(b) is unconstitutional and that this court should vacate his sentence and remand his case for resentencing to no more than two years in prison under 8 U.S.C. § 1326(a). As he concedes, this contention is foreclos*435ed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Zavala also contends that he is entitled to resentencing because the district court sentenced him under a mandatory application of the federal sentencing guidelines contrary to the rule of United States v. Booker, — U.S. -,---,-, 125 S.Ct. 738, 756-57, 769,160 L.Ed.2d 621 (2005). We review for plain error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.2005), petition for cert. filed (July 25, 2005) (No. 05-5556). Although there was an error, Zavala has failed to demonstrate a sufficient probability “that the district judge would have imposed a different sentence” under advisory guidelines. See id. at 733. Zavala thus fails to show that the error affected his substantial rights as he must do to meet the plain-error standard. See id.; United States v. Mares, 402 F.3d 511, 502, 521-22 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

The judgment of the district court is AFFIRMED.

United States v. Zavala-Flores
144 F. App'x 434

Case Details

Name
United States v. Zavala-Flores
Decision Date
Aug 17, 2005
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144 F. App'x 434

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United States

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