United States v. Rodriguez-Alvarran , 166 F. App'x 773 ( 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. 05-40253
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO RODRIGUEZ-ALVARRAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1821-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Arturo Rodriguez-Alvarran appeals his sentence for illegal
reentry into the United States following deportation in violation
of 8 U.S.C. § 1326. He argues that the district court committed
reversible error by sentencing him pursuant to a mandatory
sentencing guidelines scheme in light of United States v. Booker,
125 S. Ct. 738 (2005).
The district court committed “Fanfan” error by sentencing
Rodriguez-Alvarran pursuant to a mandatory guidelines scheme.
*
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this opinion should not be published and is not precedent except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. 05-40253
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See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.
2005). Although Rodriguez-Alvarran contends that such error is
structural, this argument is foreclosed by circuit precedent.
See id. at 463.
The Government concedes that Rodriguez-Alvarran preserved
his Fanfan claim. As such, this court reviews the claim for
harmless error. See id. at 464. There is no indication in the
record that the district court would have imposed the same
sentence had the guidelines been advisory rather than mandatory.
Accordingly, we VACATE the sentence and REMAND for resentencing
in accordance with Booker.
Rodriguez-Alvarran also argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and
(b)(2) are unconstitutional on their face and as applied in his
case in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Rodirguez-Alvarran’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rodriguez-Alvarran 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).
Rodriguez-Alvarran properly concedes that his argument is
foreclosed in light of Almendarez-Torres and circuit precedent,
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but he raises it here to preserve it for further review.
Accordingly, Rodriguez-Alvarran’s conviction is AFFIRMED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.