United States v. Arevalo-Lozano , 165 F. App'x 357 ( 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 2, 2006
Charles R. Fulbruge III
Clerk
No. 04-41153
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALFREDO AREVALO-LOZANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-277-ALL
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Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Alfredo Arevalo-Lozano (“Arevalo”) appeals his
conviction and the 63-month sentence he received for his
conviction on his guilty plea to a charge of illegal re-entry to
the United States, a violation of 8 U.S.C. § 1326.
Arevalo’s constitutional challenge to 8 U.S.C. § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Arevalo 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this opinion should not be published and is not precedent except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. 04-41153
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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). Arevalo 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, Arevalo’s conviction is AFFIRMED.
Arevalo 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). He asserts that the error in his case is reversible
because the error is structural and is insusceptible of harmless
error analysis. Contrary to Arevalo’s contention, we have
previously rejected this specific argument. See United States v.
Walters, 418 F.3d 461, 463 (5th Cir. 2005).
In the alternative, Arevalo contends that the Government
cannot show that the error that occurred at his sentencing was
harmless. We review Arevalo’s preserved challenge to his
sentence for harmless error under FED. R. CRIM. P. 52(a). See
Walters, 418 F.3d at 463.
Arevalo was sentenced at the bottom of the guideline range,
and the district court stated that Arevalo’s sentence seemed
lengthy for his crime. The record provides no indication, and
the Government has not shown, that the district court would not
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have sentenced Arevalo differently under an advisory guidelines
system. See United States v. Garza, 429 F.3d 165, 170-71 (5th
Cir. 2005). Accordingly, Arevalo’s sentence is VACATED, and his
case is REMANDED for further proceedings consistent with this
opinion.
AFFIRMED IN PART; VACATED IN PART; REMANDED.