United States v. Romero-Flores , 168 F. App'x 599 ( 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 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41403
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ROMERO-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-413-ALL
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Jesus Romero-Flores (Romero) pleaded guilty to unlawfully
re-entering the United States in violation of 8 U.S.C. § 1326(a).
Citing United States v. Booker, 543 U.S. 220 (2005), Romero
first challenges the district court’s imposition of a 16-level
enhancement for a prior felony conviction pursuant to U.S.S.G.
§ 2L1.2. As the enhancement of Romero’s sentence was based on a
prior conviction, there was no Sixth Amendment Booker error.
Nevertheless, in light of Booker, the application of the
*
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this opinion should not be published and is not precedent except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.04-41403
-2-
Guidelines as mandatory was error, which this court has termed
“Fanfan” error. See United States v. Walters, 418 F.3d 461, 463
(5th Cir. 2005). We review for harmless error, and we reject
Romero’s contention that “Fanfan” error is structural and,
therefore, insusceptible of harmless error analysis. See id. at
463-64.
The Government has failed to carry its burden of showing
harmless error as it has failed to point to anything in the
record that demonstrates “beyond a reasonable doubt that the
district court would not have sentenced [the defendant]
differently had it acted under an advisory Guidelines regime.”
United States v. Akpan, 407 F.3d 360, 376-77 (5th Cir. 2005).
The Government’s assertion that the sentence was reasonable in
light of the factors set forth in 18 U.S.C. § 3553(a), is
insufficient to carry the Government’s burden. See, e.g.,
Walters, 418 F.3d at 465-66.
Romero also asserts that the enhanced penalty provisions of
8 U.S.C. § 1362(b) are unconstitutional. Romero’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Romero 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,
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276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Romero
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.
For the foregoing reasons, we AFFIRM Romero’s conviction.
We VACATE his sentence and REMAND to the district court for re-
sentencing.
AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR RE-
SENTENCING.