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 2006-02

United States v. Martinez-Garcia , 168 F. App'x 566 ( 2006 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                February 22, 2006
Charles R. Fulbruge III
Clerk
No. 04-41276
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARTINEZ-GARCIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-678-ALL
--------------------
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Martinez-Garcia (Martinez) appeals the sentence imposed
following his guilty-plea conviction of illegal reentry after
deportation, in violation of
    8 U.S.C. § 1326
    .   The district court
sentenced Martinez to 41 months in prison, based on a prior
conviction for an alien smuggling offense.
Martinez contends that his sentence is illegal under United
States v. Booker,
    125 S. Ct. 738
     (2005), because it was imposed
pursuant to a mandatory application of the federal sentencing
*
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this opinion should not be published and is not precedent except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. 04-41276
-2-
guidelines.    Martinez thus alleges a “Fanfan” error.   See United
States v. Walters,
    418 F.3d 461
    , 463 (5th Cir. 2005).    In the
district court, Martinez objected to his sentence under Blakely
v. Washington,
    542 U.S. 296
     (2004), and the Government concedes
that the issue is preserved and that it is subject to review for
harmless error.
The Government has not carried its burden of showing beyond
a reasonable doubt that the district court’s error did not affect
Martinez’s sentence.    See Walters,
    418 F.3d at 464
    ; United States
v. Pineiro,
    410 F.3d 282
    , 285-86 (5th Cir. 2005).    We therefore
vacate the sentence and remand for resentencing in accordance
with Booker.    See Walters,
    418 F.3d at 464
    ; Pineiro,
    410 F.3d at 285-86
    .
Martinez also contends that the “felony” and “aggravated
felony” provisions of
    8 U.S.C. § 1326
    (b) are unconstitutional.
Martinez’s constitutional challenge to § 1326(b) is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
    , 235 (1998).
Although Martinez 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).    Martinez properly concedes that his argument
is foreclosed in light of Almendarez-Torres and circuit
No. 04-41276
-3-
precedent, but he raises it here to preserve it for further
review.   Accordingly, the conviction is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.