United States v. De La Garza , 168 F. App'x 647 ( 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 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-40971
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO DE LA GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-970-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Arturo De La Garza was convicted pursuant to a guilty plea
of inducing an alien to enter the United States, bringing an
alien into the United States, and transporting an alien within
the United States. He argues that the sentences imposed in his
case are unconstitutional and should be vacated because they were
imposed under the mandatory United States Sentencing Guidelines
held unconstitutional in United States v. Booker, 543 U.S. 220(2005).
*
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this opinion should not be published and is not precedent except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. 04-40971
-2-
By sentencing De La Garza under a mandatory sentencing
guidelines regime, the district court committed what this court
refers to as Fanfan error. See United States v. Walters, 418
F.3d 461, 463-64 (5th Cir. 2005). The Government concedes that
De La Garza preserved his Fanfan claim for appellate review. A
Fanfan error is not structural error. Thus, this court reviews
the district court’s actions for harmless error. See id.At De La Garza’s sentencing hearing, the district court
noted that if the United States Sentencing Guidelines were held
unconstitutional it would impose the same term of imprisonment it
had previously imposed. In light of that statement, the
Government has carried its burden of establishing that the
district court’s sentencing error was harmless. See id. at 464;
United States v. Saldana, 427 F.3d 298, 314-15 (5th Cir.), cert.
denied, 126 S. Ct. 810 (2005), cert. denied, 2006 WL 37834 (Jan.
9, 2006) (No. 05-7803).
The judgment of the district court is AFFIRMED.