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United States v. Naranjo-Martinez , 167 F. App'x 998 ( 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                February 22, 2006
Charles R. Fulbruge III
Clerk
No. 04-40900
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JAIME NARANJO-MARTINEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-208-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Jaime Naranjo-Martinez appeals his guilty-plea
conviction and sentence for being found unlawfully present in the
United States following deportation after conviction for
possession of marijuana with intent to distribute.     Naranjo-
Martinez argues that
    8 U.S.C. § 1326
    (b) is unconstitutional.
Naranjo-Martinez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
    , 235 (1998).
Although Naranjo-Martinez contends that Almendarez-Torres was
*
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this opinion should not be published and is not precedent except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. 04-40900
-2-
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
    , 490 (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).    Naranjo-
Martinez 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.
Naranjo-Martinez also argues that the district court erred
in imposing his sentence pursuant to the mandatory United States
Sentencing Guidelines invalidated in United States v. Booker,
    543 U.S. 220
    ,
    125 S. Ct. 738
     (2005).    The Government concedes that
Naranjo-Martinez’s objection pursuant to Blakely v. Washington,
    542 U.S. 296
     (2004), was sufficient to preserve this argument for
appeal.    Therefore, we review Naranjo-Martinez’s sentence for
harmless error.    See United States v. Mares,
    402 F.3d 511
    , 520
n.9 (5th Cir.), cert. denied,
    126 S. Ct. 43
     (2005).    Under that
standard, the sentence will be vacated and remanded unless the
Government proves beyond a reasonable doubt that the error was
harmless--i.e., that it did not affect the sentence Naranjo-
Martinez received.    See United States v. Walters,
    418 F.3d 461
    ,
463-65 (5th Cir. 2005).
The Government argues that Naranjo-Martinez admitted his
prior conviction at rearraignment and that his sentence was
No. 04-40900
-3-
enhanced based on his prior conviction, a factor to which Booker
does not apply.    The Government argues that the error was
harmless because the district court considered the factors in
    18 U.S.C. § 3553
    (a), FED. R. CRIM. P. 32(d), the Guidelines, and all
other matters before the court prior to imposing a sentence
within the applicable guidelines sentencing range.
The Government’s contentions are insufficient to satisfy its
burden of demonstrating that the district court, operating under
an advisory Guidelines scheme, would have imposed the same
sentence.   Rather, the sentence imposed may simply reflect what
the district court believed was appropriate within the then-
mandatory Guidelines framework.    See, e.g., United States v.
Garza,
    429 F.3d 165
    , 170-71 (5th Cir. 2005) (recognizing that the
Government had, to date, demonstrated harmless Booker error only
in instances where (1) the district court expressly indicated
that it would impose the same sentence under an advisory scheme
and (2) the district court expressly refused to run the
defendant’s federal Guidelines sentence concurrently with his
state sentence).    The assertions by the Government, without more,
shed no light on how the district court would have acted had it
known that it was not bound to follow the Guidelines.
Accordingly, the Government has failed to demonstrate harmless
error.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.