United States v. Nunez-Munoz , 168 F. App'x 580 ( 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 22, 2006
Charles R. Fulbruge III
Clerk
No. 04-41374
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICOLAS NUNEZ-MUNOZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-547-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Nicolas Nunez-Munoz (Nunez) appeals his conviction and
sentence for illegal reentry after a previous deportation. Nunez
argues that the district reversibly erred under United States v.
Booker, 125 S. Ct. 738 (2005), by sentencing him pursuant to a
mandatory application of the Sentencing Guidelines.
There was no “Booker” error or Sixth Amendment violation
because the only enhancement to Nunez’s sentence was for his
prior conviction. See Booker, 125 S. Ct. at 756, 769.
*
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this opinion should not be published and is not precedent except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. 04-41374
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Nevertheless, the district court committed “Fanfan” error by
sentencing Nunez pursuant to a mandatory guidelines scheme. See
United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).
We have previously rejected Nunez’s claim that such error is
“‘structural’ in nature.” See id. at 463.
The Government concedes that Nunez preserved his Fanfan
argument. 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.
Nunez next 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). Nunez’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Nunez 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). Nunez properly concedes that his
argument is foreclosed in light of Almendarez-Torres and circuit
No. 04-41374
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precedent, but he raises it here to preserve it for further
review. Accordingly, Nunez’s conviction is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.