United States v. Gomez-Romero , 168 F. App'x 603 ( 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. 04-41598
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIAS GOMEZ-ROMERO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-821-ALL
--------------------
Before KING, GARWOOD, and SMITH, Circuit Judges.
PER CURIAM:*
Having pleaded guilty, Elias Gomez-Romero (Gomez) appeals
his conviction and 63-month sentence for being illegally present
in the United States following deportation in violation of 8
U.S.C. § 1326.
Gomez’s constitutional challenge to 8 U.S.C. § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Gomez contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
*
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this opinion should not be published and is not precedent except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. 04-41598
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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). Gomez 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, Gomez’s conviction is affirmed.
Gomez contends that his sentence must be vacated because he
was sentenced pursuant to mandatory Sentencing Guidelines that
were held unconstitutional in United States v. Booker, 543 U.S.
220 (2005). Although Gomez asserts that the error in his case is
structural and not susceptible of harmless error analysis, we
have previously rejected this specific argument. See United
States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).
In the alternative, Gomez contends that the Government
cannot show that the sentencing error was harmless. We review
Gomez’s preserved challenge to his sentence for harmless error
under FED. R. CRIM. P. 52(a). See Walters, 418 F.3d at 463.
The district court sentenced Gomez to the lowest sentence in
the relevant guidelines sentencing range. The record does not
indicate, and the Government has not shown, that the district
court would have imposed the same sentence under an advisory
guidelines regime. See United States v. Garza, 429 F.3d 165,
170-71 (5th Cir. 2005). Accordingly, we vacate Gomez’s sentence
No. 04-41598
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and remand the case for further proceedings consistent with this
opinion.
CONVICTION AFFIRMED IN PART; SENTENCE VACATED; REMANDED.