United States v. Soto-Soria , 164 F. App'x 531 ( 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. 04-41538
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOLBERTO SOTO-SORIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-962-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Nolberto Soto-Soria (Soto) appeals his sentence from a
guilty-plea conviction for re-entry of a deported alien. See
8 U.S.C. § 1326(b)(2). Soto argues that his sentence should be
vacated and remanded because the district court sentenced him
under a mandatory Guideline scheme held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005).
As the Government concedes, Soto’s “Fanfan” claim is
reviewed for harmless error. See United States v. Walters, 418
*
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this opinion should not be published and is not precedent except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. 04-41538
-2-
F.3d 461, 464 (5th Cir. 2005). The instant record fails to
provide clear commentary from the district court regarding
whether it would have imposed the same sentence under a post-
Booker environment. See id. Accordingly, the district court’s
“Fanfan” error was not harmless on the instant record. See id.
Soto also challenges the constitutionality of
8 U.S.C. § 1326(b). His constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Soto 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). Soto 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.
We VACATE Soto’s sentence and REMAND for resentencing.