United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-11379
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO AVENDANO-ALEMAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-00146-ALL
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Rolando Avendano-Aleman (“Avendano”) appeals the sentence
imposed after he plead guilty to illegally reentering the United
States following deportation, in violation of 8 U.S.C. § 1326.
Under section 1326, the maximum sentence available was twenty years
imprisonment and three years supervised release,1 but under the
United States Sentencing Guidelines, Avendano’s individualized
*
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this opinion should not be published and is not precedent except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.
1
See 18 U.S.C. § 3583(b)(2) (authorizing courts to impose a
supervised release term of not less than three years for a class C
felony); id. § 3559(a)(3) (defining a class C felony as an offense
with a statutory maximum term of imprisonment less than twenty-five
years, but at least ten years).
No. 04-11379
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imprisonment range was determined to be seventy to eighty-seven
months imprisonment and his supervised release range was determined
to be two to three years. Avendano was ultimately sentenced to
seventy-eight months imprisonment and three years supervised
release.
On appeal, Avendano raises three challenges to his sentence,
all of which were preserved in the district court. Avendano argues
that his Sixth Amendment rights were violated under United States
v. Booker1 because his sentence (1) was enhanced sixteen levels
under the Sentencing Guidelines based on a prior conviction for “a
crime of violence,”2 and (2) was imposed under the mandatory
sentencing regime.3 Avendano also challenges the constitutionality
of the sentence-enhancement provisions in section 1326(b)(1) and
(b)(2), which increase the statutory maximum prison term from two
to either ten or twenty years based on a prior felony conviction or
a prior aggravated felony conviction, respectively. As Avendano
concedes, however, his latter argument is foreclosed by
Almendarez-Torres v. United States4 and existing circuit precedent,5
1
125 S.Ct. 738 (2005).
2
U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (2004).
3
Booker, 125 S.Ct. at 749-50, 764 (holding that mandatory
sentences that are enhanced based on facts not admitted by the
defendant or found beyond a reasonable doubt violate the Sixth
Amendment and remedying the constitutional violation by rendering
the Sentencing Guidelines advisory only).
4
523 U.S. 224, 226-27, 235 (1998) (holding that a prior
conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and
not a separate element of a criminal offense and therefore it need
No. 04-11379
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but the argument is raised to preserve the issue for Supreme Court
review.
When a Sixth Amendment claim under Booker “is preserved in the
district court by an objection, [this Court] will ordinarily vacate
the sentence and remand, unless we can say the error is harmless
under rule 52(a) of the Federal Rules of Criminal Procedure.”6 The
Government concedes, and we agree based on the record, that it
cannot show harmless error as to Avendano’s claim that the district
court improperly sentenced him under mandatory Sentencing
Guidelines. Because the Government cannot show beyond a reasonable
doubt that the district court would not have sentenced Avendano
differently under an advisory sentencing regime,7 we vacate and
remand for resentencing in accordance with Booker.
not be proved to a jury or admitted by the defendant before it may
be used to enhance a sentence).
5
See United States v. Izaguirre-Flores, 405 F.3d 270, 277-78
(5th Cir. 2005) (this Court must follow Almendarez-Torres “‘unless
and until the Supreme Court itself decides to overrule it.’”
(quoting United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000))).
6
United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.
2005), pet. for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).
7
See United States v. Pineiro, 410 F.3d 282, 285 (5th Cir.
2005) (“[T]o show harmlessness, the government must demonstrate
beyond a reasonable doubt that the Sixth Amendment Booker error did
not affect the sentence that the defendant received.”); United
States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005) (“[T]he
government must bear the burden of demonstrating that the error was
harmless by demonstrating beyond a reasonable doubt that the
federal constitutional error of which the defendant complains did
not contribute to the sentence that he received.” (citations
omitted)).
No. 04-11379
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Avendano asserts that the district court’s sentencing
discretion on remand should be capped at the applicable Sentencing
Guidelines maximum rather than the statutory maximum of twenty
years imprisonment. Avendano claims that application of the
remedial holding in Booker, rendering the Sentencing Guidelines
advisory,8 violates the ex post facto and due process clauses of
the Constitution by exposing him to a harsher sentence under the
advisory guidelines system than was available under the mandatory
system. Avendano’s claim is meritless because (1) at all pertinent
times the statutory maximum prison term was twenty years,
(2) before Avendano plead guilty and before his guideline
punishment range was determined, the court explicitly notified him
that he faced a statutory maximum prison term of twenty years,
which is the same potential term he will face on remand, and
(3) the court admonished him that his guilty plea would stand even
if the ultimate sentence imposed was harsher than he expected.9
Moreover, in United States v. Scroggins, we recently rejected a
similar argument, holding that it “is at least implicitly contrary
to the holding in Justice Breyer’s Booker opinion that ‘we must
apply today’s holdings–both the Sixth Amendment holding and our
8
Booker, 125 S.Ct. at 764 (excising the statutory provision
making application of the guidelines mandatory).
9
See United States v. Scroggins, 411 F.3d 572, 575-76 (5th
Cir. 2005) (rejecting a nearly identical argument under Booker);
see also United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir.
2005) (same), pet. for cert. filed (U.S. Jun. 20, 2005 (No. 05-
5467); United States v. Jamison, ___ F.3d ___ (7th Cir. 2005)
(same) (citing Duncan and Scroggins).
No. 04-11379
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remedial interpretation of the Sentencing Act–to all cases on
direct review.’”10
The district court’s judgment is therefore VACATED and
REMANDED for resentencing in accordance with Booker.
10
Scroggins, 411 F.3d at 576 (quoting Booker, 125 S.Ct. at
769).