                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        June 6, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-20701
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellant,

                                  versus

                       FRANCISCO ARRIOLA-CARDONA,

                                                      Defendant-Appellee.



            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 4:04-CR-90-ALL


Before JONES, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

           Francisco Arriola-Cardona (Arriola) was convicted by

guilty plea of unlawful presence in the United States after removal

subsequent to an aggravated felony conviction.             Over Arriola’s

objection, the district court adjusted his base offense level

upward by eight levels because Arriola’s prior theft conviction was

an aggravated felony.      The resulting guidelines sentencing range

was eighteen to twenty-four months.         The district court rejected

Arriola’s request that his sentence contain a “credit” for time


     *
            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opinion should not be published and is not precedent except under the limited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.
spent in custody by immigration authorities, saying, “I can’t give

him credit.”        The court did sentence Arriola to eighteen months,

the bottom of the Guidelines range.             Arriola appeals only his

sentence.

                             Aggravated Felony

            Arriola argues that his prior theft conviction does not

qualify as an aggravated felony under the Guidelines because his

original two-year sentence was probated and his sentence upon

revocation of probation was less than one year.              As Arriola raised

this argument in the district court, our review of the district

court’s application of the Guidelines is de novo.              United States v.

Charon, 442 F.3d 881, 887 (5th Cir. 2006).

            Section     2L1.2(b)(1)(C)      provides   for     an     eight-level

increase in offense level if the defendant has a prior conviction

for an aggravated felony.           The commentary to § 2L1.2 adopts the

definition     of     “aggravated    felony”   set     forth     in    8    U.S.C.

§ 1101(a)(43). See § 2L1.2, comment (n.2). Section § 1101(a)(43)(G)

defines “aggravated felony” to include “a theft offense . . . for

which the term of imprisonment [is] at least one year.”                    8 U.S.C.

§ 1101(a)(43)(G). The phrase “term of imprisonment” refers to “the

period of incarceration or confinement ordered by a court of law

regardless of any suspension of the imposition or execution of that

imprisonment.”       Id. § 1101(a)(48)(B).




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           We distinguish situations in which a court sentences a

defendant directly to probation and situations like the one in this

case, in which the court has sentenced the defendant to a period of

incarceration and then suspended it in favor of probation.                See

United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir.

2001).   Arriola argues that, because his sentence after revocation

of probation was only seven months, his original sentence of two

years’ imprisonment, probated for five years, was not “at least one

year” as required by § 1101(a)(43)(G).          We rejected this argument

in an unpublished opinion directly on point, United States v.

Retta-Hernandez, 106 F. App’x 879, 880-83 (5th Cir. 2004).

           Arriola concedes that his prior conviction would be an

aggravated felony under Retta-Hernandez.              He argues that Retta-

Hernandez was wrongly decided and points out that, as an unpub-

lished opinion, it is not precedential.           We nonetheless find the

reasoning of Retta-Hernandez persuasive, see 5TH CIR. R. 47.5.4, and

decline to reach a contrary result.

          Constitutionality of 8 U.S.C. § 1346(a) and (b)

           Arriola   argues   that       8   U.S.C.   §   1326   is   facially

unconstitutional because it treats prior felony and aggravated

felony convictions as sentencing factors rather than as elements of

the offense that must be found by a jury.                 This challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235




                                     3
(1998), by which we are bound.               United States v. Garza-Lopez, 410

F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

                                    Fanfan Error

            Arriola was sentenced before the decision in United

States v. Booker, 543 U.S. 220 (2005), and the district court

imposed sentence under the then-mandatory Sentencing Guidelines.

Arriola’s initial brief, filed prior to the issuance of Booker,

raised no challenge to the constitutionality of the Sentencing

Guidelines.    In a supplemental letter brief, Arriola argued that

the district court erred in sentencing him pursuant to a mandatory

guidelines scheme.         He conceded that, because he had not objected

to the constitutionality of the Guidelines in district court, the

plain error standard of review applied to his argument.                        In his

reply brief, Arriola asserted that his concession of plain error

review was improvident based on an objection he raised in district

court.

            Imposition       of     a     sentence    pursuant     to    a   mandatory

application    of    the    Sentencing       Guidelines    constitutes       “Fanfan”

error.     United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th

Cir.), cert. denied, 126 S. Ct. 464 (2005); see United States v.

Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (discussing difference

between Booker and Fanfan error).                    We have rejected Arriola’s

argument    that    Fanfan        error     is   structural      and    presumptively

prejudicial.       United States v. Malveaux, 411 F.3d 558, 561 & n.9



                                             4
(5th Cir.), cert. denied, 126 S. Ct. 194 (2005).                   If Fanfan error

“is preserved in the district court by an objection,” the burden is

on the Government to show that the error was harmless.                        United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert.

denied, 126 S. Ct. 267 (2005).          Unpreserved claims of Fanfan error

are reviewed for plain error only, in which case the burden is on

Arriola   to   show   that    the   error     was   plain       and   affected   his

substantial rights.     Id.

            In initial objections to the PSR, Arriola argued that his

prior theft conviction was not an aggravated felony “under the

current, unconstitutional scheme.”           In a footnote, defense counsel

observed:

     Despite the Fifth Circuit’s recent holding in [United
     States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), vacated,
     543 U.S. 1101 (2005)] that the Supreme Court’s decision
     in Blakely v. Washington, 542 U.S. 296 (2004), does not
     impact the constitutionality of the federal guidelines,
     counsel suspects that the guidelines are doomed.

This remark was not repeated in Arriola’s objections to the revised

PSR, nor did counsel or the district court mention Blakely during

sentencing.

            Under RULE 51(B)   OF THE   FEDERAL RULES   OF   CRIMINAL PROCEDURE, “[a]

party may preserve a claim of error by informing the court — when

the court ruling or order is made or sought — of the action the

party wishes the court to take, or the party’s objection to the

court’s action and the grounds for that objection.”                         Arriola

asserts that his references to an “unconstitutional scheme” and to


                                         5
the Guidelines being “doomed” preserved Fanfan error.                    We do not

consider such oblique references to be an “objection” putting the

district court on notice that a ruling was required.                   We therefore

review for plain error.

            Plain   error   is   “(1)     error,   (2)    that    is    plain,   and

(3) that affects substantial rights.” Valenzuela-Quevedo, 407 F.3d

at 732 (internal quotation marks and citation omitted).                   If these

three conditions are met, we may exercise our discretion to notice

the error, but only if “(4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

Id. (internal quotation marks and citation omitted).

            Arriola’s Fanfan error satisfies the first two prongs of

the standard by being both “plain” and “error.”                 To show an effect

on   his   substantial    rights,      Arriola   must    show    that    the   error

“affected the outcome of the district court proceedings.”                      Id. at

733 (internal quotation marks and citation omitted).                   Arriola must

identify    “statements     in   the    record     by   the     sentencing     judge

demonstrating a likelihood that the judge, sentencing under an

advisory scheme rather than a mandatory one, would have reached a

significantly different result.”             United States v. Pennell, 409

F.3d 240, 245 (5th Cir. 2005).

            The district court stated that it had chosen a sentence

“at the low end [of the Guidelines] instead of the middle as

recommended” by the probation officer because it could not give

Arriola credit for time in immigration custody.                 A sentence at the

                                         6
low end of the Guidelines, without more, is insufficient to show

that Fanfan error affected a defendant’s substantial rights.         See

United States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.), cert.

denied, 126 S. Ct. 264 (2005) (discussing Sixth Amendment Booker

error).   Nothing in the record indicates that the district court

would   have   imposed   a   different   sentence   under   an   advisory

guidelines scheme.   Therefore, Arriola has failed to show that the

district court’s Fanfan error affected his substantial rights, and

he cannot establish plain error.

           The district court’s judgment is AFFIRMED.




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