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 2006-02

United States v. Salgado-Rangel , 165 F. App'x 355 ( 2006 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                   February 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-40095
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON SALGADO-RANGEL, also known as
Aaron Rangel-Salgado,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1532-ALL
--------------------
Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Aaron Salgado-Rangel (Salgado) appeals the 30-month sentence
imposed following his guilty-plea conviction of attempting to
enter the United States without permission after having been
deported, in violation of
    8 U.S.C. § 1326
    .    Salgado argues that
his sentence is illegal under United States v. Booker,
    543 U.S. 220
    ,
    125 S. Ct. 738
     (2005), because it was imposed pursuant to a
mandatory application of the federal Sentencing Guidelines.
The erroneous application of the Guidelines as mandatory is
technically a “Fanfan error.”   United States v. Martinez-Lugo,
*
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this opinion should not be published and is not precedent except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. 05-40095
-2-
    411 F.3d 597
    , 600 (5th Cir.), cert. denied,
    126 S. Ct. 464
    (2005); see Booker, 125 S. Ct. at 750, 768-69.     The Government
concedes that Salgado preserved his Fanfan claim for appeal and
that the issue is reviewed for harmless error.     See United States
v. Walters,
    418 F.3d 461
    , 464 (5th Cir. 2005).    The Government
contends that harmless error is shown by the imposition of a
“reasonable” sentence at the low end of the guidelines range.
However, the Government does not carry its arduous burden of
showing that the district court would not have sentenced Salgado
differently under an advisory guidelines system.     See United
States v. Pineiro,
    410 F.3d 282
    , 284-85 (5th Cir. 2005); United
States v. Garza,
    429 F.3d 165
    , 170-71 (5th Cir. 2005) (Booker
error).    We therefore we vacate the sentence and remand for
resentencing in accordance with Booker.
Salgado also argues § 1326 is unconstitutional.   As he
concedes, this argument is foreclosed by Almendarez-Torres v.
United States,
    523 U.S. 224
     (1998), which this court must follow
“unless and until the Supreme Court itself determines to overrule
it.”    United States v. Izaguirre-Flores,
    405 F.3d 270
    , 277-78
(5th Cir.) (quotation marks omitted), cert. denied,
    126 S. Ct. 253
     (2005).    The judgment of conviction is affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.