United States v. Guzman-Gonzalez , 164 F. App'x 531 ( 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 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-11220
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALEXIS ADRIAN GUZMAN-GONZALEZ
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-204-ALL-H
--------------------
Before KING, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Alexis Adrian Guzman-Gonzalez appeals his conviction of one
charge of illegal reentry into the United States and the
resulting sentence of 54 months in prison and a two-year term of
supervised release. He first challenges the constitutionality of
8 U.S.C. § 1326(b). Guzman-Gonzalez’s constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Guzman-Gonzalez contends that
Almendarez-Torres was incorrectly decided and that a majority of
*
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this opinion should not be published and is not precedent except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. 04-11220
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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). Guzman-
Gonzalez 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.
Guzman-Gonzalez also 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 Guzman-Gonzalez under a mandatory
Guidelines regime, it committed Fanfan error. See United States
v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). When a Fanfan
error “is preserved in the district court by an objection, we
will ordinarily vacate the sentence and remand, unless we can say
the error is harmless.” United States v. Mares, 402 F.3d 511,
520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
The Government concedes that Guzman-Gonzalez’s objection,
which was grounded in Blakely v. Washington, 542 U.S. 296 (2004),
was sufficient to preserve his Fanfan claim and that the harmless
error standard of review applies. We conclude that the
Government has not met its burden of showing beyond a reasonable
doubt that the district court would have imposed the same
No. 04-11220
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sentence absent the error. See United States v. Garza, 429 F.3d
165, 170-71 (5th Cir. 2005). We therefore vacate Guzman-
Gonzalez’s sentence and remand for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.