United States v. Prones, 145 F. App'x 481

United States v. Prones

145 F. App'x 481

5th Cir.

2005

Check Treatment

Docket

Armando Torres-Avila (Torres) v. United States

United States Court of Appeals, Fifth Circuit

Aug. 23, 2005

481

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

James Lee Turner, Assistant U.S. Attorney, Mitchel Neurock, U.S. Attorney‘s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Norman E. McInnis, Assistant Federal Public Defender, Federal Public Defender‘s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:^*

This court affirmed the judgment of conviction and sentence of Armando Torres-Avila (Torres); the Supreme Court vacated and remanded for further consideration in light of

United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). (unpublished); vacated by sub nom. .

Torres argues that the district court erred by imposing a sentence pursuant to the mandatory federal sentencing guideline system that was held unconstitutional in

Booker. Torres fails to meet his burden of showing that the district court‘s sentence under guidelines it deemed mandatory affected his substantial rights such that his sentence amounts to plain error. .

Because nothing in the Supreme Court‘s

Booker decision requires us to change our prior affirmance in this case, we reinstate our judgment affirming Torres‘s conviction and sentence.

AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee, v. Juan Villanueva PRONES, also known as Gustavo Aguirre, Defendant-Appellant.

No. 05-10143.

United States Court of Appeals, Fifth Circuit.

Decided Aug. 23, 2005.

Summary Calendar.

Delonia Anita Watson, U.S. Attorney‘s Office, Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.

Christopher Allen Curtis, Federal Public Defender‘s Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant.

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:^*

Juan Villanueva Prones appeals the sentence imposed following his guilty-plea conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). He argues that the district court‘s enhancement of his sentence under United States Sentencing Guidelines § 2L1.2(b)(1)(C) violated

United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He also argues that considering his prior state conviction as an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C) was an erroneous application of the federal sentencing guidelines.

We review Prones‘s first issue de novo. See

United States v. Pineiro, 410 F.3d 282, 285 (5th Cir.2005). The government concedes that Prones preserved a error but argues that because the district court expressly refused to run the appellant‘s 24-month guidelines sentence concurrently with his state court sentence, there could not have been harmful error. Under the circumstances of this case, the district court‘s conscious decision not to award a concurrent sentence persuades us that any error was harmless beyond a reasonable doubt. .

We review Prones‘s second issue for plain error.

United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir.2002). Prones concedes that his second argument is foreclosed by circuit precedent, and he raises it to preserve it for possible further review by this court en banc or by the Supreme Court. The argument is foreclosed. A state felony conviction for simple possession of a controlled substance is an aggravated felony for U.S.S.G. § 2L1.2 purposes, even though such a conviction is a misdemeanor under federal law. See . , does not affect this court‘s binding precedent. Accordingly, Prones‘s sentence is AFFIRMED.

Notes

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. 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.