UNITED STATES of America, Plaintiff-Appellee, v. Luis ARQUIMEDES-PORTILLO, also known as Luis Portillo, Defendant-Appellant, 132 F. App'x 36

PRADO, Circuit Judge: Luis Arquimedes-Portillo (“Portillo”) was indicted for and pleaded guilty to being unlawfully present in the United States following deportation under 8 U.S.C. § 1326. At sentencing, the district court applied a 16-level “crime of violence” enhancement for Portillo’s 1992 New York conviction for first degree rape and sentenced him to the bottom of the applicable Guidelines range: 46 months of imprisonment and 2 years of supervised release. On appeal, Portillo challenges his conviction by arguing that the “felony” and “aggravated felony” provisions contained in 8 U.S.C. § 1326(

b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Portillo concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). However, he argues that Almendarez-Torres has been cast into doubt by Apprendi and raises this issue to preserve it for Supreme Court review. Sections 1326(b)(1) and (b)(2) set forth enhanced criminal penalties for aliens who were previously removed after committing a felony or an aggravated felony.

In Almendarez-Torres, the Supreme Court held that § 1326(b)(2)’s enhancement provision is a sentencing factor and not a separate criminal offense that must be alleged in the indictment. 523 U.S. at 235, 118 S.Ct. 1219. Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). Because we must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it,” Hopwood v. Texas, 84 F.3d 720, 722 (5th Cir.1996), we affirm Portillo’s conviction.

Portillo also argues that the district court’s mandatory application of the Sentencing Guidelines is reversible error under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Portillo did not raise this objection to his sentence in the district court, it is subject to plain error review. United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.2005). An appellant may demonstrate plain error if he shows “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. (citing United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)).

If all three conditions are met, then we may exercise our discretion to notice the error only if it also “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. “It is clear after Booker that application of the Guidelines in their mandatory form constitutes error that is plain.” United States v. Valenzuela-Quevedo, 407 F.3d 728, 733-34 (5th Cir.2005). Therefore, the first two requirements of the plain error test are met. The third prong of the test, however, is not satisfied in this case.

To demonstrate that his substantial rights have been affected, Portillo must show that the district court’s error affected the outcome of the proceedings. United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To meet that burden, Portillo must show “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).

Portillo contends that the district court’s imposition of the minimum available sentence, especially in light of the vileness of his prior crime, demonstrates a probability that the court would have imposed a lower sentence had it not been constrained by the mandatory provisions in the Guidelines. However, the transcript of the sentencing hearing reveals why the judge sentenced Portillo to only 46 months: “The reasons that I have chosen this sentence within the guidelines is because there was a recommendation of a sentence at the low end of the guidelines in this case.

It’s part of the plea bargain agreement.” Neither these remarks, nor anything else in the record, indicate that the judge would have imposed a more lenient sentence under an advisory regime. Portillo’s substantial rights, therefore, have not been affected, and he has failed to show plain error. For the foregoing reasons, we AFFIRM Portillo’s conviction and sentence. AFFIRMED. Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.