United States v. Hernandez-Lozano , 169 F. App'x 371 ( 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 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-41004
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO HERNANDEZ-LOZANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-229-1
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Alberto Hernandez-Lozano (Hernandez) appeals his conviction
and the 41-month sentence that was imposed for his guilty plea to
a charge of being found in the United States following removal, a
violation of 8 U.S.C. § 1326.
Hernandez’s constitutional challenge to 8 U.S.C. § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Hernandez contends that Almendarez-Torres
was incorrectly decided and that a majority of the Supreme Court
*
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this opinion should not be published and is not precedent except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. 04-41004
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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). Hernandez 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, Hernandez’s conviction is affirmed.
Hernandez asserts that his sentence must be vacated because
he was sentenced pursuant to mandatory Sentencing Guidelines in
violation of United States v. Booker, 543 U.S. 220 (2005). He
asserts that the error in his case is structural and is
insusceptible to harmless error analysis. Contrary to
Hernandez’s contention, we have previously rejected this specific
argument. See United States v. Walters, 418 F.3d 461, 463 (5th
Cir. 2005).
Hernandez contends that the Government cannot show that the
error that occurred at his sentencing was harmless. The
Government concedes that Hernandez preserved his claim of error.
We review Hernandez’s challenge to his sentence for harmless
error under FED. R. CRIM. P. 52(a). See Walters, 418 F.3d at 463.
Nothing in the record demonstrates and the Government has not
shown that the district court would not have imposed a different
sentence under advisory Sentencing Guidelines. United States v.
Garza, 429 F.3d 165, 170-71 (5th Cir. 2005). Accordingly,
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Hernandez’s sentence is vacated, and his case is remanded for
further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; REMANDED.