United States v. Tejada-Calderon , 168 F. App'x 574 ( 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 22, 2006
Charles R. Fulbruge III
Clerk
No. 05-40099
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO EGARDO TEJADA-CALDERON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1410-1
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Mauricio Egardo Tejada-Calderon (Tejada) his guilty-plea
conviction and sentence for illegal reentry, in violation of 8
U.S.C. § 1326(b)(1)&(2). He argues that the district court erred
in sentencing him under the mandatory Sentencing Guidelines
regime held unconstitutional in United States v. Booker, 125
S. Ct. 738, 764-65 (2005). The sentencing transcript is devoid
of evidence that the district court would have imposed the same
sentence under an advisory regime, and, therefore, the Government
*
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this opinion should not be published and is not precedent except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. 05-40099
-2-
has not borne its burden of establishing beyond a reasonable
doubt that the district court’s error was harmless. See United
States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
Accordingly, Tejada’s sentence is VACATED, and the case is
REMANDED for further proceedings. See id. at 466.
Because we vacate Tejada’s sentence and remand for
resentencing under an advisory guidelines scheme, we do not reach
the other claims of sentencing error that Tejada raises. See
United States v. Akpan, 407 F.3d 360, 377 n. 62 (5th Cir. 2005).
To the extent that Tejada challenges his conviction by asserting
that the “felony” and “aggravated felony” provisions of
§ 1326(b) are unconstitutional, the claim is foreclosed. by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Cortez 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). Cortez 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 Tejada’s conviction,
but we VACATE his sentence and REMAND for re-sentencing.