United States v. Elizondo-Gutierrez , 167 F. App'x 387 ( 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 6, 2006
Charles R. Fulbruge III
Clerk
No. 04-41413
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON ELIZONDO-GUTIERREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-949-ALL
--------------------
Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Ramon Elizondo-Gutierrez (Elizondo) appeals from his guilty-
plea conviction and sentence for illegal reentry. Elizondo
argues that the district court reversibly erred under United
States v. Booker, 125 S. Ct. 738 (2005), by sentencing him
pursuant to a mandatory application of the sentencing guidelines.
The Government concedes that Elizondo has preserved this issue
for appeal. The Government, however, has not shown beyond a
*
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this opinion should not be published and is not precedent except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. 04-41413
-2-
reasonable doubt that the error was harmless. See United States
v. Garza, 429 F.3d 165, 170 (5th Cir. 2005); United States v.
Pineiro, 410 F.3d 282, 285 (5th Cir. 2005). Accordingly,
Elizondo’s sentence is vacated, and this case is remanded for
resentencing.
Elizondo also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Elizondo’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Elizondo contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, 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). Elizondo
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.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.