                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                  UNITED STATES COURT OF APPEALS
                                                              October 3, 2006
                       for the Fifth Circuit
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 04-50986


                    UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,


                                VERSUS


                   FRANCISCO BAUTISTA-INZUNZA,

                                            Defendant-Appellant.




       Appeal from the United States District Court
             for the Western District of Texas

                          (3:04-CR-1080)

Before GARZA, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

      In   this    sentencing    appeal,   Appellant       Francisco

Bautista-Inzunza       (“Bautista”)      argues   (1)     that       the

district court committed reversible error under United


  *
   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that this opinion should not be published and is not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.
States v. Booker, 543 U.S. 220 (2005), by sentencing him

pursuant to a mandatory application of the Sentencing

Guidelines and (2) that his sentence violates due process

under   Apprendi      v.   New    Jersey,       530    U.S.   466     (2000),

because it exceeds the two-year statutory maximum for the

offense charged in the indictment. For the reasons stated

below, we affirm.

                            I. Background

    Bautista was charged in a one-count indictment with

illegal re-entry in violation of 8 U.S.C. § 1326. The

indictment did not allege that Bautista had a prior

conviction. However, the Government filed a notice of

intent to seek an increased statutory penalty pursuant to

§ 1326(b)(2) on the basis of a prior drug-trafficking

conviction.    Bautista          pled       guilty    to    the     one-count

indictment before a magistrate judge, and the district

court accepted the magistrate’s recommendation that the

plea be accepted.

    Prior to sentencing, the probation officer filed a

pre-sentence    report      (“PSR”)         with     the   court.    The   PSR

assessed   a   base    offense      level       of    eight   pursuant      to

                                        2
U.S.S.G. § 2L1.2(a); a sixteen-level increase in the

offense level pursuant to § 2L1.2(b)(1)(A) to reflect

Bautista’s prior conviction; and a three-level reduction

in the offense level pursuant to § 3E1.1 to reflect

Bautista’s acceptance of responsibility. This resulted in

a total offense level of twenty-one. Based on this total

offense level and a criminal history category of III, the

range of imprisonment under the Sentencing Guidelines was

forty-six to fifty-seven months.

    Bautista   filed   an   objection   to   the   PSR   in   the

district court pursuant to Apprendi v. New Jersey, 530

U.S. 466 (2000), arguing that a sentence in excess of two

years would violate due process because the fact of prior

conviction was not alleged in his indictment, submitted

to a jury, or proved beyond a reasonable doubt. He

conceded,   however,   that   his   Apprendi   challenge      was

foreclosed by Almendarez-Torres v. United States, 523

U.S. 224 (1998), and raised it only to preserve it for

further review.

    The district court overruled Bautista’s objection

prior to sentencing, and, bound by 18 U.S.C. § 3553(b)(1)

                              3
to impose a sentence within the forty-six to fifty-seven

month guideline range, sentenced Bautista to forty-six

months of imprisonment and three years of supervised

release. Bautista timely appealed.

     After    Bautista   filed   his   notice   of   appeal,   the

Supreme Court issued its opinion in United States v.

Booker, 543 U.S. 220 (2005), holding that pursuant to

Blakely v. Washington, 542 U.S. 296 (2004), the mandatory

application of the Sentencing Guidelines violated the

Sixth   Amendment.   Accordingly,      the   Court   struck    the

mandatory provisions of the Guidelines, rendering them

effectively advisory. Booker, 543 U.S. at 245. The Court

determined that its decision would apply to all cases

that were on direct review as of its date of issuance.

Id. at 268.

                          II. Analysis

A.   Booker Challenge

     Bautista argues that the district court committed

reversible error under Booker by sentencing him pursuant

to a mandatory application of the Sentencing Guidelines.

This is an alleged “Fanfan” error, see United States v.

                                 4
Walters,      418      F.3d        461,       463      (5th     Cir.        2005)

(differentiating between Sixth Amendment “Booker” error

and non-constitutional “Fanfan” error), that Bautista did

not preserve for appeal. We review non-preserved Fanfan

error for plain error. United States v. Mares, 402 F.3d

511, 520 (5th Cir. 2005). Under plain error review, the

defendant bears the burden of proving (1) error, (2) that

is   plain,      and       (3)     that      affects     the    defendant’s

substantial      rights.         Id.   If    the    defendant       meets    this

burden, the Court “‘may then exercise its discretion to

notice a forfeited error but only if . . . the error

seriously affects the fairness, integrity, or public

reputation of judicial proceedings.’” Id. (quoting United

States v. Cotton, 535 U.S. 625, 631 (2002)).

     Sentencing        a   defendant         pursuant     to    a    mandatory

application of the Sentencing Guidelines satisfies the

first two prongs of the plain error test. United States

v. Duarte-Juarez, 441 F.3d 336, 338 (5th Cir. 2006). To

satisfy    the   third       prong,         Bautista    must    demonstrate,

“‘with a probability sufficient to undermine confidence

in the outcome, that if the judge had sentenced him under

                                        5
an advisory sentencing regime rather than a mandatory

one, he would have received a lesser sentence.’” Id.

(quoting United States v. Infante, 404 F.3d 376, 394-95

(5th Cir. 2005)). Bautista has not met this burden. The

only evidence Bautista offers as proof that the court

would have sentenced him to a lower sentence is the fact

that   the   court    imposed       the    lowest      sentence      in   the

guidelines range and a statement by the court indicating,

at best, that the sentence imposed was harsh: “It’s

amazing, huh? He gets almost the same sentence that a man

gets   for   bringing    in    four       tons   of    marijuana.”1       The

imposition of a sentence at the low end of the guidelines

range,   alone,      “does    not    indicate         that   there    is    a

reasonable probability that the court would have imposed

a lesser sentence under advisory sentencing guidelines.”

Id. at 339 (citing United States v. Bringier, 405 F.3d

310, 317-18 & n.4 (5th Cir.), cert. denied, 126 S. Ct.


  1
   Bautista raises additional arguments in his reply
brief, e.g., that the district court would have imposed
a different sentence under an advisory scheme because of
“the sympathetic circumstances of Bautista’s case,” but
these are waived. United States v. Reinhart, 357 F.3d
521, 524 n.4 (5th Cir. 2004).
                                     6
264   (2005)).     Further,       the       combination      of    a    low-end

guidelines sentence and an acknowledgment by the district

court that the sentence imposed was harsh is not enough

to satisfy the third prong of the plain error test.

Bringier, 405 F.3d at 317 n.4. In the absence of any

other evidence that the district court would have imposed

a lower sentence under an advisory guidelines scheme,

Bautista    has    failed     to    demonstrate         plain      error      as

required under Mares.

B.    Apprendi Challenge

      Bautista     argues    that       his       sentence   violates         due

process    under    Apprendi       v.       New   Jersey,    530       U.S.   466

(2000), because it exceeds the two-year statutory maximum

for the offense charged in the indictment. This argument

is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224 (1998), as conceded by Bautista, and Bautista

only raises the argument to preserve it for further

review.

                            III. Conclusion

      Because the district court’s error in sentencing

Bautista   pursuant     to    a    mandatory         application         of   the

                                        7
Sentencing Guidelines was not plain error and because

Bautista’s Apprendi challenge is foreclosed by Supreme

Court precedent, we affirm Bautista’s sentence.

AFFIRMED.




                           8
