United States v. Hernandez-Juarez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 30, 2005

Charles R. Fulbruge III
Clerk
No. 04-50999
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EZEQUIEL HERNANDEZ-JUAREZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-64-1-WWJ
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Ezequiel Hernandez-Juarez (“Hernandez”) appeals the sentence

imposed following his guilty-plea conviction for being unlawfully

present in the United States following deportation.

We first address Hernandez’s argument that the sentence-

enhancement provisions of 8 U.S.C. §§ 1326(b)(1) and 1326(b)(2)

are unconstitutional. Hernandez concedes that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998), but he seeks to preserve this argument for further

*
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this opinion should not be published and is not precedent except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. 04-50999
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review. Apprendi v. New Jersey, 530 U.S. 466 (2000), did not

overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;

United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir. 2003).

The Supreme Court’s decision in United States v. Booker, 125

S. Ct. 738 (2005), also did not overrule Almendarez-Torres. See

Booker, 125 S. Ct. at 756. This court must follow the precedent

set in Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.” Mancia-Perez, 331 F.3d at 470

(quotation marks and citation omitted).

Hernandez also argues that his sentence is illegal under

Booker because it was imposed pursuant to a mandatory application

of the sentencing guidelines. Because he did not raise a Sixth

Amendment objection below, we review this issue for plain error.

See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).

Hernandez must demonstrate that (1) there is an error; (2) that

is plain; and (3) that affects his substantial rights. Id. If

these conditions are satisfied, we may exercise our discretion to

correct the error if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

We first conclude that the district court committed an error

that was plain by sentencing Hernandez under a mandatory

application of the sentencing guidelines. See United States v.

Valenzuela-Quevedo, __ F.3d __, No. 03-41754, 2005 WL 941353 at

*4 (5th Cir. Apr. 25, 2005). At sentencing, the district court

stated “I think the sentencing guidelines are too severe myself.
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But as a judge, I’m bound by them.” We conclude that this

statement indicates that the district court would have imposed a

lesser sentence under an advisory system. Therefore, Hernandez

has met the third prong of the plain error test by showing that

the error affected his substantial rights. See United States v.

Pennell, __ F.3d __, No. 03-50926, 2005 WL 1030123 at *5 (5th

Cir. May 4, 2005).

We have previously held that errors in sentencing guidelines

calculations that increase a defendant’s sentence seriously

affect the fairness, integrity, or public reputation of judicial

proceedings. See United States v. Gracia-Cantu, 302 F.3d 308,

313 (5th Cir. 2002). Because Hernandez has shown the likelihood

that the error in this case increased his sentence, he has shown

that the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings. See Pennell, 2005 WL

1030123 at *5-*6.

The district court’s imposition of Hernandez’s sentence

pursuant to a mandatory application of the sentencing guidelines

was plainly erroneous. Accordingly, Hernandez’s sentence is

VACATED, and this case is REMANDED to the district court for

resentencing consistent with Booker.