United States v. Gonzalez , 165 F. App'x 346 ( 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. 04-20968
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO GONZALEZ, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CR-877-4
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Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Santiago Gonzalez, Jr., appeals his convictions and
sentences for conspiracy and aiding and abetting to possess with
the intent to distribute five kilograms or more of cocaine.
Gonzalez argues that the district court reversibly erred under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), by
sentencing him pursuant to a mandatory application of the
Sentencing Guidelines.
*
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this opinion should not be published and is not precedent except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. 04-20968
-2-
There was no “Booker” error or Sixth Amendment violation
because the only enhancement to Gonzalez’s sentences was for his
prior convictions. See Booker, 125 S. Ct. at 756, 769.
Nevertheless, the district court committed “Fanfan” error by
sentencing Gonzalez pursuant to a mandatory guidelines scheme.
See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.
2005). We have previously rejected Gonzalez’s claim that such
error is “structural” in nature. See id. at 463.
The Government concedes that Gonzalez preserved his Fanfan
claim. As such, this court reviews the claim for harmless error.
See id. at 464. There is no indication in the record that the
district court would have imposed the same sentence had the
guidelines been advisory rather than mandatory. Accordingly, we
vacate the sentences and remand for resentencing.
Gonzalez next argues that the career offender enhancement
violated his constitutional rights because the predicate
convictions were neither charged in the indictment nor found by a
jury beyond a reasonable doubt. The argument is without merit.
See United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005),
cert. denied, ___ S. Ct. ___ (Jan. 9, 2006)(No. 05-7643).
Gonzalez properly acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
seeks to preserve the issue for further review. Gonzalez’s
convictions are affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.