          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                    FILED
                                                                 December 13, 2007
                                No. 06-40969
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MARIO SALVADOR MEMBRENO

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 1:03-CR-978-ALL


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Mario Salvador Membreno appeals his sentence for illegal reentry after
deportation in violation of 8 U.S.C. §§ 1326(a) and (b). Membreno argues that
the district court erred in relying upon the Presentence Investigation Report’s
(PSR) characterizations of his prior state court offenses as crimes of violence to
enhance his sentence by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The Government contends that Membreno waived this issue or, alternatively,
failed to demonstrate that the court plainly erred in applying the enhancement.

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-40969

      After reviewing the record, we find that although Membreno did not
intentionally relinquish his right to challenge the district court’s reliance on the
PSR such that he has waived this argument, he has forfeited the error. See
United States v. Olano, 507 U.S. 725, 733 (1993). We further find that although
the district court plainly erred in relying solely upon the PSR’s characterization
of Membreno’s past offenses for enhancement purposes, see United States v.
Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005), Membreno has failed to
demonstrate that but for the error, the district court would not have imposed the
enhancement. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005);
United States v. Villegas, 404 F.3d 355, 365 (5th Cir. 2005). Consequently, he
has failed to establish that the error affects his substantial rights. See Villegas,
404 F.3d at 365.
      Membreno also contends that the district court committed reversible
Fanfan error when it sentenced him pursuant to the mandatory Sentencing
Guidelines held unconstitutional in United States v. Booker, 543 U.S. 220 (2005).
In the context of a Fanfan challenge, “application of the Guidelines in their
mandatory form constitutes error that is plain.”                United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005). However, Membreno
must establish “with a probability sufficient to undermine confidence in the
outcome, that if the judge had sentenced him under an advisory sentencing
regime rather than a mandatory one, he would have received a lesser sentence.”
United States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005). The imposition of a
sentence at the bottom of the guidelines range, as in this case, is not sufficient,
on its own, to demonstrate that there is a reasonable probability that the court
would have imposed a lesser sentence under advisory sentencing guidelines. See
United States v. Duarte-Juarez, 441 F.3d 336, 338-39 (5th Cir. 2006). The
district court made no specific statements that would indicate that it would have
preferred to sentence Membreno below the applicable guidelines range and, in


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fact, rejected Membreno’s arguments in favor of a downward departure.
Accordingly, Membreno has failed to demonstrate that the error affects his
substantial rights. See Mares, 402 F.3d 511 at 520.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Membreno
challenges the constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. This court has held that this issue is “fully
foreclosed from further debate.”            United States v. Pineda-Arrellano,
492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007)
(No. 07-6202).

      AFFIRMED.




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