United States v. Cantu-Covarrubias , 164 F. App'x 533 ( 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 16, 2006
Charles R. Fulbruge III
Clerk
No. 05-40107
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO CANTU-COVARRUBIAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1813-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Arturo Cantu-Covarrubias (“Cantu”) appeals his sentence
following his guilty plea conviction for illegal reentry. First,
he argues that his prior burglary-of-a-habitation conviction is
not a “crime of violence” supporting the 16-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). This argument is
foreclosed. See United States v. Garcia-Mendez, 420 F.3d 454,
456-57 (5th Cir. 2005).
*
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this opinion should not be published and is not precedent except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. 05-40107
-2-
Second, Cantu argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Cantu’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Cantu contends that Almendarez-Torres was incorrectly
decided 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). Cantu
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.
Finally, Cantu argues that the district court reversibly
erred under United States v. Booker, 125 S. Ct. 738 (2005), by
sentencing him pursuant to a mandatory application of the
sentencing guidelines. The Government concedes that Cantu has
preserved this issue for appeal. The Government, however, has
not shown beyond a reasonable doubt that the error was harmless.
See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.
2005). Accordingly, Cantu’s sentence is VACATED, and this case
is REMANDED for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.