United States v. Mondragon-Gusman , 168 F. App'x 582 ( 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. 05-40100
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUFINO MONDRAGON-GUSMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1349-1
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Rufino Mondragon-Gusman (Mondragon) appeals his conviction
and sentence for illegal reentry after a previous deportation.
Mondragon argues that the district 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. There was no “Booker” error or Sixth
Amendment violation because the only enhancement to Mondragon’s
sentence was for his prior conviction. See Booker, 125 S. Ct. at
*
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this opinion should not be published and is not precedent except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. 05-40100
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756, 769. Nevertheless, the district court committed “Fanfan”
error by sentencing Mondragon pursuant to a mandatory guidelines
scheme. See United States v. Walters, 418 F.3d 461, 463-64 (5th
Cir. 2005). We have previously rejected Mondragon’s claim that
such error is “structural” in nature. See id. at 463.
The Government concedes that Mondragon preserved his Fanfan
argument. As such, this court reviews the claim for harmless
error. See id. at 464. As the Government further concedes,
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
sentence and remand for resentencing in accordance with Booker.
Because we vacate Mondragon’s sentence due to the mandatory
application of the guidelines, it is not necessary to address his
additional claim that the district court committed reversible
error by assessing a 12-level increase under U.S.S.G.
§ 2L1.2(b)(1)(B). See United States v. Akpan, 407 F.3d 360, 377
n.62 (5th Cir. 2005).
Finally, Mondragon argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional on their face and as applied in his case in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Mondragon’s constitutional challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although
Mondragon contends that Almendarez-Torres was incorrectly decided
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and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, 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). Mondragon
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. Accordingly, Mondragon’s
conviction is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.