United States v. Ontiveros-Mayorga , 164 F. App'x 532 ( 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 2, 2006
Charles R. Fulbruge III
Clerk
No. 04-41376
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS ONTIVEROS-MAYORGA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-729-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Luis Ontiveros-Mayorga (“Ontiveros”) appeals from his
guilty-plea conviction for reentry of a deported alien, in
violation of 8 U.S.C. § 1326. Ontiveros 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). He also argues that the district court erroneously
determined that a prior state conviction was for a crime of
violence.
*
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this opinion should not be published and is not precedent except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. 04-41376
-2-
Because the district court sentenced Ontiveros under a
mandatory Guidelines regime, it committed Fanfan error. See
United 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)(discussing
the difference between Sixth Amendment Booker error and Fanfan
error). “[I]f either the Sixth Amendment issue presented in
Booker or the issue presented in Fanfan 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
under Rule 52(a) of the Federal Rules of Criminal Procedure.”
United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005)
(internal quotation marks and citation omitted). The Government
concedes that Ontiveros’s objection on the basis of Blakely was
sufficient to preserve his Fanfan claim.
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 sentence absent the error. See Pineiro,
410 F.3d at 286; United States v. Garza, 429 F.3d 165, 171 (5th
Cir. 2005). We therefore VACATE Ontiveros’s sentence and REMAND
for re-sentencing. Because the Fanfan error requires remand for
re-sentencing, we need not address Ontiveros’s other claimed
sentencing error. See United States v. Akpan, 407 F.3d 360, 377
n.62 (5th Cir. 2005).
No. 04-41376
-3-
Ontiveros 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 Ontiveros 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). Ontiveros 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, Ontiveros’s conviction is AFFIRMED.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.