                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             October 24, 2005
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 04-41418




     UNITED STATES OF AMERICA,


                                    Plaintiff-Appellee,


          versus


     TOMAS ALBERTO PEREZ-RAMALES,
     also known as Tomas Velalsquez-Sanchez,

                                    Defendant-Appellant.




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



Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Tomas Alberto Perez-Ramales (Perez) appeals the sentence

imposed following his guilty-plea conviction for being illegally

present in the United States in violation of 8 U.S.C. § 1326 (a)

& (b).   Perez argues that the district court erred by sentencing


     *
       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this opinion should not be published and is not precedent except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.
him under the mandatory guidelines scheme held unconstitutional

in United States v. Booker, 125 S.Ct. 738 (2005).     He made no

Booker related objection whatever below.

     The government argues that Perez waived his right to appeal

his sentence.    In support of its waiver argument, the government

points to the following language contained in Perez’s plea

agreement:

     “The defendant, by entering this plea, also waives any right
     to have facts that the law makes essential to the punishment
     either (1) charged in the indictment or (2) proven to a jury
     or (3) proved beyond a reasonable doubt. The defendant
     explicitly consents to be sentenced pursuant to the
     applicable Sentencing Guidelines. The defendant explicitly
     acknowledges that his plea to the charged offenses(s)
     authorizes the court to impose any sentence authorized by
     the Sentencing Guidelines, up to and including the statutory
     maximum under the relevant statute(s).”

We have differentiated the two types of error under Booker,

labeling the type of error that Perez raises in this appeal — the

application of the Sentencing Guidelines as mandatory — as Fanfan

error.   See United States v. Martinez-Lugo, 411 F.3d 597, 600

(5th Cir. 2005), petition for cert. filed (Sep. 2, 2005)(No.

05-6242).    The other type of error under Booker is the violation

of the Sixth Amendment right to have a jury find beyond a

reasonable doubt all facts that increase the sentence beyond the

maximum sentence that could be imposed based on facts admitted by

the defendant.    Id.   The terms of this plea agreement arguably

constitute a waiver of the Sixth Amendment rights otherwise



                                   2
protected by Booker error, but they fall short of the appeal

waiver that the argument claims.          Not only does Perez’s plea

agreement contain no explicit waiver of appeal (and, indeed, does

not even contain the word “appeal” or any synonym thereof), but

there was no discussion of a waiver of the right to appeal at the

Rule 11 hearing.        See FED. R. CRIM P. 11(b)(1)(N).

        Perez’s claim of Fanfan error is raised for the first time

on appeal, as he concedes, and so we review the claim under the

plain error standard of review.           Valenzuela-Quevedo, 407 F.3d at

732.1       Fanfan error “satisfies the first two prongs of that

standard by being both ‘plain’ and ‘error.’” Martinez-Lugo, 411

F.3d at 600.        To meet the third prong of the plain error

analysis, however, and show that his substantial rights were

affected, Perez “faces a difficult challenge in establishing that

the sentencing court’s use of a mandatory rather than an advisory

Guidelines scheme actually affected the outcome of the

proceedings.”        United States v. De Jesus-Batres, 410 F.3d 154,

166 (5th Cir. 2005) petition for cert. filed (Aug. 9, 2005)(No.


        1
      We assume, arguendo only, that the above quoted language
in Perez’s plea agreement does not constitute a waiver by Perez
of any objection to being sentenced under mandatory guidelines so
as to preclude his prevailing before this court on the merits of
his complaint that it was error to so sentence him. See United
States v. Haidley 400 F.3d 642, 644-45 (8th Cir. 2005); United
States v. Lea, 400 F.3d 1115 (8th Cir. 2005). See also United
States v. Puckett, ___ F.3d ___, No. 04-5988, 2005 WL 2123790, at
*2 (6th Cir. Sep. 6, 2005).


                                      3
05-6275).   “To carry this burden, the defendant must ordinarily

point to 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.”       Id.   This court has emphasized

that the “defendant’s burden of establishing prejudice ‘should

not be too easy.’” United States v. Mares, 402 F.3d 511, 521 (5th

Cir. 2005) (quoting United States v. Dominguez Benitez, 124 S.Ct.

2333, 2340 (2004)).   The fact that Perez received the 46 month

minimum in the Sentencing Guidelines range (46-57 months) for his

offense level and criminal history score is not alone sufficient

to satisfy the third prong.   Martinez-Lugo, 411 F.3d at 601;

United States v. DeJesus-Batres, 400 F.3d 154, 163-66 (5th Cir.

2005); United States v. Creech, 408 F.3d 264, 271-72 (5th Cir.

2005); United States v. Holmes, 406 F.3d 337, 362-66 (5th Cir.

2005).   There is nothing in the record to indicate that the judge

would have sentenced Perez differently under advisory

guidelines.2   Because Perez has not shown that his substantial

rights were affected, he has not demonstrated plain error.       Perez

also argues that this error should be presumed prejudicial, but

we have previously rejected that argument.        United States v.

     2
      We note that the district court at sentencing overruled
Perez’s contention (not raised on appeal) that the PSR over
represented his criminal history, and in doing so characterized
his prior attempted murder conviction “as a very, very serious
offense.”

                                   4
Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005).

     Perez’s only remaining argument is that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional in light of Apprendi v. New Jersey, 120 S.Ct.

2348 (2000), and its progeny, because it permits a sentencing

judge to increase a sentence beyond the statutory maximum based

on a factor that need not be submitted to a jury for proof or

admitted by the defendant.   Perez concedes this argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States, 118 S.Ct. 1219 (1998), but raises it here to

preserve the issue for review.   We must follow Almendarez-Torres

“‘unless and until the Supreme Court itself determines to

overrule it.’”   United States v. Izaguirre-Flores, 405 F.3d 270,

277–78 (5th Cir. 2005) (citation omitted).

                             AFFIRMED.




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