eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2006-02

United States v. Sanchez , 168 F. App'x 575 ( 2006 )


Menu:
 
  •                                                          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. 04-40957
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL AARON MENDOZA SANCHEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-972-ALL
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Saul Aaron Mendoza Sanchez appeals from his guilty-plea
conviction for reentry of a deported alien, in violation of
    8 U.S.C. § 1326
    .    Sanchez 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,
    125 S. Ct. 738
     (2005).
Because the district court sentenced Sanchez under a
mandatory guidelines regime, it committed error.     See United
*
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this opinion should not be published and is not precedent except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. 04-40957
-2-
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
Sanchez’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
Sanchez’s sentence and REMAND for re-sentencing.
Sanchez 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 Sanchez 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).   Sanchez 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.   Accordingly, Sanchez’s conviction is AFFIRMED.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.