United States v. Miranda-Sanchez , 168 F. App'x 613 ( 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 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41533
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANSELMO MIRANDA-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-797-ALL
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Anselmo Miranda-Sanchez (Miranda) appeals his conviction and
sentence for attempted illegal reentry after a previous
deportation. Miranda argues that the district committed
reversible error under United States v. Booker, 543 U.S. 220, 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 Miranda’s sentence was for his
*
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this opinion should not be published and is not precedent except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. 04-41533
-2-
prior conviction. See Booker, 543 U.S. at ___, 125 S. Ct. at
756, 769. Nevertheless, the district court committed “Fanfan”
error by sentencing Miranda pursuant to a mandatory guidelines
scheme. United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.
2005). Although Miranda contends that such error is structural,
he acknowledges that this argument is foreclosed by circuit
precedent; he raises the issue merely to preserve it for further
review.
As the Government concedes that Miranda preserved his Fanfan
claim, we review Miranda’s argument for harmless error. See
Walters, 418 F.3d at 464. Nothing in the record indicates that
the district court would have imposed the same sentence had the
Sentencing Guidelines been advisory rather than mandatory.
Accordingly, we vacate Miranda’s sentence and remand for
resentencing in accordance with Booker.
Miranda 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). Miranda’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Miranda
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
No. 04-41533
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States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Miranda 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, Miranda’s conviction is affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.