United States v. Puente-Solis , 166 F. App'x 760 ( 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. 04-41399
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO RAFAEL PUENTE-SOLIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-880-ALL
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Arturo Rafael Puente-Solis pleaded guilty to attempted re-
entry of a deported alien in violation of 8 U.S.C. § 1326 and was
sentenced to 62 months of imprisonment and three years of
supervised release.
Puente-Solis’s constitutional challenge to 8 U.S.C. § 1326is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Puente-Solis contends that
Almendarez-Torres was incorrectly decided and that a majority of
*
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this opinion should not be published and is not precedent except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. 04-41399
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the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Puente-
Solis 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, Puente-Solis’s
conviction is AFFIRMED.
Puente-Solis contends that his sentence must be vacated
because he was sentenced pursuant to mandatory sentencing
guidelines that were held unconstitutional in United States v.
Booker, 125 S. Ct. 738 (2005). He asserts that the error is
structural and is insusceptible of harmless error analysis.
Contrary to Puente-Solis’s contention, we have previously
rejected this specific argument. See United States v. Walters,
418 F.3d 461, 463 (5th Cir. 2005).
In the alternative, Puente-Solis contends that the
Government cannot show that the Fanfan error was harmless. We
review Puente-Solis’s preserved challenge to his sentence for
harmless error under FED. R. CRIM. P. 52(a). Walters, 418 F.3d at
463.
Puente-Solis was sentenced at the middle of the guideline
range, and the district court provided no commentary regarding
the sentence that it imposed. The record provides no indication,
No. 04-41399
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and the Government has not shown, that the district court would
not have sentenced Puente-Solis differently under an advisory
guidelines system. See United States v. Garza, 429 F.3d 165,
170-71 (5th Cir. 2005). Accordingly, Puente-Solis’s sentence is
VACATED, and his case is REMANDED for further proceedings
consistent with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.