United States v. Escoval-Espinoza , 168 F. App'x 5 ( 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. 05-40144
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ERNESTO ESCOVAL-ESPINOZA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1373-1
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Ernesto Escoval-Espinoza appeals from his guilty-plea
conviction for reentry of a deported alien, in violation of 8
U.S.C. § 1326. Escoval-Espinoza argues that his sentence should
be vacated and remanded because the district court sentenced him
under the mandatory guidelines scheme held unconstitutional in
United States v. Booker, 543 U.S. 220 (2005). He also argues
that the district court erroneously determined that a prior state
conviction was for a crime of violence.
*
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this opinion should not be published and is not precedent except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. 05-40144
-2-
Because the district court sentenced Escoval-Espinoza under
a mandatory guidelines regime, it committed error. See United
States v. Valenzuela-Quevado, 407 F.3d 728, 733 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005); see also United States v. Walters,
418 F.3d 461, 463 (5th Cir. 2005). The Government concedes that
Escoval-Espinoza’s objection below preserved his claim. We
cannot affirm the erroneous sentence unless the Government shows
that the error is harmless beyond a reasonable doubt. See United
States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005). We
conclude that the Government has not met its burden. See United
States v. Garza, 429 F.3d 165, 171 (5th Cir. 2005). We therefore
VACATE Escoval-Espinoza’s sentence and REMAND for re-sentencing.
Accordingly, we need not address Escoval-Espinoza’s other claimed
sentencing error. See United States v. Akpan, 407 F.3d 360, 377
n.62 (5th Cir. 2005).
Escoval-Espinoza also challenges the constitutionality of 8
U.S.C. § 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Escoval-Espinoza contends that Almendarez-Torres was
incorrectly decided and that 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). Escoval-Espinoza properly
No. 05-40144
-3-
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. Accordingly, Escoval-Espinoza’s
conviction is AFFIRMED.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.