United States v. Hernandez-Perez , 166 F. App'x 758 ( 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 15, 2006
Charles R. Fulbruge III
Clerk
No. 04-41166
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS HERNANDEZ-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-432-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Jesus Hernandez-Perez appeals his guilty-plea conviction and
sentence for illegal reentry following deportation in violation
of 8 U.S.C. § 1326. He contends that the district court
committed reversible error when it sentenced him pursuant to the
mandatory United States Sentencing Guidelines held
unconstitutional in United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (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this opinion should not be published and is not precedent except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. 04-41166
-2-
The district court erred when it sentenced Hernandez-Perez
pursuant to a mandatory guidelines system. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,
126 S. Ct. 267 (2005). This error was more like that experienced
by the other respondent in Booker, Ducan Fanfan. See United
States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert.
denied, 126 S. Ct. 464 (2005). Because Hernandez-Perez preserved
his Fanfan challenge in the district court by raising an
objection based on Blakely v. Washington, 542 U.S. 296 (2004), we
review for harmless error. See United States v. Garza, 429 F.3d
165, 170 (5th Cir. 2005) (Booker error). The Government bears
the burden of proving beyond a reasonable doubt that the district
court would not have sentenced Hernandez-Perez differently under
an advisory guidelines system. See United States v. Walters, 418
F.3d 461, 464 (5th Cir. 2005).
The sentencing transcript is silent with regard to whether
the district court would have applied the same sentence had the
Guidelines been advisory rather than mandatory. Further,
although the district court believed there was no basis to depart
from the Guidelines, that fact alone “sheds little light on what
the sentencing judge would have done knowing that the
[G]uidelines were advisory.” Garza, 429 F.3d at 171 (quotation
marks and citation omitted). Therefore, the Government has
failed to carry its burden of showing beyond a reasonable doubt
that the error did not affect Hernandez-Perez’s sentence. See
No. 04-41166
-3-
id. at 170-71. We therefore vacate Hernandez-Perez’s sentence
and remand the case for resentencing.
Hernandez-Perez also challenges the constitutionality of 8
U.S.C. § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000).
Hernandez-Perez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Hernandez-Perez 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). Hernandez-Perez properly concedes that his
argument is foreclosed in light of Almendarez-Torres and circuit
precedent, but raises it here to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.