United States v. Anariba-Ramirez , 166 F. App'x 154 ( 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. 04-41293
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALFONSO ANARIBA-RAMIREZ, also known as Luis Alonzo
Anariba-Ramirez, also known as Oscar Rolando Zavala-Guzman,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1685-ALL
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Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Luis Alfonso Anariba-Ramirez appeals from his guilty-plea
conviction and sentence for being found in the United States
after having been previously removed. He was sentenced to 50
months of imprisonment and three years of supervised release.
Anariba-Ramirez asserts that his sentence is invalid in light of
United States v. Booker, 543 U.S. 220 (2005). Because the
district court sentenced Anariba-Ramirez under a mandatory
guidelines regime, it committed a Fanfan 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this opinion should not be published and is not precedent except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. 04-41293
-2-
States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Because
the Government concedes that Anariba-Ramirez preserved his Fanfan
claim, this court reviews for harmless error. Id.; United States
v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct.
43 (2005). Under this standard of review, the Government bears
the burden of proving beyond a reasonable doubt that the district
court would not have sentenced Anariba-Ramirez differently under
an advisory guidelines sentencing regime. Walters, 418 F.3d at
464. The record contains no indication that the district court
would have imposed the same sentence absent the error. The
Government thus cannot meet its burden. Accordingly, Anariba-
Ramirez’s sentence is vacated and the case is remanded for
resentencing.
Anariba-Ramirez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Anariba-Ramirez 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). Anariba-Ramirez 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.
No. 04-41293
-3-
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.