United States v. Mendoza-Contreras , 168 F. App'x 572 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 22, 2006
Charles R. Fulbruge III
Clerk
No. 04-41544
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VALENTIN MENDOZA-CONTRERAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1242-ALL
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Before KING, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Valentin Mendoza-Contreras (Mendoza) pleaded guilty to
unlawfully re-entering the United States in violation of 8 U.S.C.
§ 1326(a). Citing United States v. Booker, 125 S. Ct. 738(2005), Mendoza first challenges the district court’s imposition
of a 16-level enhancement for a prior felony conviction pursuant
to U.S.S.G. § 2L1.2. Although an enhancement based on a prior
conviction does not violate the Sixth Amendment, the application
of the Guidelines as mandatory was error, which we have termed
*
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this opinion should not be published and is not precedent except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. 04-41544
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“Fanfan” error. See United States v. Walters, 418 F.3d 461, 463
(5th Cir. 2005). As Mendoza preserved the error, we review for
harmless error, and we reject Mendoza’s contention that “Fanfan”
error is structural and, therefore, insusceptible of harmless
error analysis. See id. at 463-64.
The Government has failed to carry its burden of showing
harmless error as it has failed to point to anything in the
record that demonstrates “beyond a reasonable doubt that the
district court would not have sentenced [Mendoza] differently had
it acted under an advisory Guidelines regime.” United States v.
Akpan, 407 F.3d 360, 377 (5th Cir. 2005). The fact that, as the
Government argues, the district court imposed a sentence in the
middle of the Guidelines, took into account the appropriate
sentencing factors, and considered imposing a higher sentence
sheds little light on what the district court would have done
under an advisory Guidelines system. See, e.g., United States v.
Garza, 429 F.3d 165, 170-71 (5th Cir. 2005). To the contrary,
the sentence may simply reflect what the district court believed
was an appropriate sentence within the then-mandatory Guidelines
framework. See id.Mendoza also asserts that the enhanced penalty provisions of
8 U.S.C. § 1362(b) are unconstitutional. Mendoza’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Mendoza
contends that Almendarez-Torres was incorrectly decided and that
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a majority of the Supreme Court would overrule Almendarez-Torres
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have
repeatedly rejected such arguments on the basis that Almendarez-
Torres remains binding. See United States v. Garza-Lopez, 410
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Mendoza properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but he raises
it here to preserve it for further review.
For the foregoing reasons, we AFFIRM Mendoza’s conviction.
We VACATE his sentence and REMAND to the district court for re-
sentencing.