United States v. Bonilla-Fragoso , 166 F. App'x 764 ( 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. 04-41611
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN BONILLA-FRAGOSO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1082-1
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Martin Bonilla-Fragoso appeals his 41-month sentence for
illegal reentry into the United States following deportation in
violation of 8 U.S.C. § 1326(b). Bonilla-Fragoso argues that the
district court committed reversible error by sentencing him
pursuant to a mandatory sentencing guidelines regime in light of
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). He
also contends that, because the district court imposed the lowest
possible sentence under the guidelines, with little explanation,
*
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this opinion should not be published and is not precedent except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. 04-41611
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and his criminal history consisted of a single conviction, the
district court may have concluded that his 41-month sentence was
excessive under an advisory guidelines regime. Bonilla-Fragoso
contends that the district court’s error thus was not harmless.
Bonilla-Fragoso’s challenge to the district court’s
mandatory application of the Sentencing Guidelines does not
implicate the Sixth Amendment and instead alleges the type of
error that the district court committed in sentencing Ducan
Fanfan, one of the defendants in Booker. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,
126 S. Ct. 267 (2005). The Government concedes that
Bonilla-Fragoso preserved a claim of Fanfan error, but asserts
that the error was harmless.
The imposition of Bonilla-Fragoso’s sentence under the
then-mandatory guideline sentencing regime constituted error, and
the Government thus bears the burden of proving beyond a
reasonable doubt that the district court would not have sentenced
Bonilla-Fragoso differently under an advisory guideline
sentencing regime. See United States v. Walters, 418 F.3d 461,
464 (5th Cir. 2005). This court noted in United States v. Garza,
429 F.3d 165, 170 (5th Cir. 2005), that it had found Booker
errors harmless in two circumstances--first, when the district
court stated that it would have imposed the same sentence in the
absence of mandatory guidelines, and second, when the district
court explicitly refused to allow the defendant to serve his
No. 04-41611
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federal sentence concurrently with his state sentence. Garza,
429 F.3d at 170. Neither of those circumstances is present in
Bonilla-Fragoso’s case. Nor is there any indication in the
record that the district court would have imposed the same
sentence had the guidelines been advisory rather than mandatory.
See Walters, 484 F.3d at 464-66.
Bonilla-Fragoso also challenges the constitutionality of
§ 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). Bonilla-Fragoso’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Defendant 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). Bonilla-Fragoso 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, Bonilla-Fragoso’s conviction is affirmed,
his sentence is VACATED, and the case is REMANDED for
resentencing.
CONVICTION AFFIRMED; VACATED AND REMANDED FOR RESENTENCING.