United States v. Gonzalez-Pardo , 168 F. App'x 598 ( 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. 04-41141
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE NATIVIDAD GONZALEZ-PARDO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-377-ALL
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Natividad Gonzalez-Pardo 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 Gonzalez to 15 months of imprisonment, based in part on
a prior illegal reentry conviction.
Gonzalez contends that his sentence is illegal under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it
was imposed pursuant to a mandatory application of the United
*
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this opinion should not be published and is not precedent except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. 04-41141
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States Sentencing Guidelines. Gonzalez thus alleges a “Fanfan”
error. See United States v. Walters, 418 F.3d 461, 463 (5th Cir.
2005). In the district court, Gonzalez 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
Gonzalez’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.
Gonzalez also contends that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Gonzalez’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Gonzalez 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). Gonzalez properly concedes
that his argument is foreclosed in light of Almendarez-Torres and
No. 04-41141
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circuit precedent, but he raises it here to preserve it for
further review. Accordingly, the judgment of conviction is
affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.