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United States v. Jacinto-Lara , 170 F. App'x 335 ( 2006 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                  March 8, 2006
Charles R. Fulbruge III
Clerk
No. 04-41030
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL JACINTO-LARA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-602-1
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Manuel Jacinto-Lara (Jacinto) appeals his conviction
and the sentence he received after he pleaded guilty to illegal
reentry following deportation.   Jacinto argues that his sentence
is illegal under United States v. Booker,
    543 U.S. 220
    ,
    125 S. Ct. 738
     (2005), because it was imposed pursuant to a mandatory
application of the federal Sentencing Guidelines.
The erroneous application of the Guidelines as mandatory is
technically a “Fanfan error.”    United States v. Martinez-Lugo,
*
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this opinion should not be published and is not precedent except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. 04-41030
-2-
    411 F.3d 597
    , 600 (5th Cir.), cert. denied,
    126 S. Ct. 464
    (2005); see Booker, 125 S. Ct. at 750, 768-69.     The Government
concedes that Jacinto preserved his Fanfan claim for appeal.        The
Government fails to meet its burden of proving that the district
court’s sentence under Guidelines it deemed mandatory was
harmless beyond a reasonable doubt because the Government fails
to cite to any record evidence showing that the district court
would have imposed the same sentence under an advisory guidelines
scheme.   See United States v. Walters,
    418 F.3d 461
    , 464 (5th
Cir. 2005); United States v. Garza,
    429 F.3d 165
    , 171 (5th Cir.
2005) (Booker error).   We therefore vacate the sentence and
remand the case for resentencing in accordance with Booker.
Jacinto argues that the district court misapplied U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) when it enhanced his sentence because his
South Carolina state conviction for second-degree burglary does
not qualify as a “crime of violence.”     Given that the entire
sentence is vacated, this court need not reach Jacinto’s
argument.   See United States v. Akpan,
    407 F.3d 360
    , 377 n.62
(5th Cir. 2005).   Rather, we leave to the district court’s
discretion which enhancements it will apply upon resentencing.
See
    id.
    Jacinto also argues that the enhancement provisions set
forth in
    8 U.S.C. § 1326
    (b) are unconstitutional.     As he
concedes, this argument is foreclosed by Almendarez-Torres v.
United States,
    523 U.S. 224
     (1998), which this court must follow
No. 04-41030
-3-
“unless and until the Supreme Court itself determines to overrule
it.”    United States v. Izaguirre-Flores,
    405 F.3d 270
    , 277-78
(5th Cir.) (quotation marks omitted), cert. denied,
    126 S. Ct. 253
     (2005).    The judgment of conviction is affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.