United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-11493
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR ALBERTO PRIETO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-213-ALL
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Oscar Alberto Prieto (Prieto) appeals the sentence imposed
by the district court following his guilty plea to illegal
reentry after removal from the United States in violation of
8 U.S.C. § 1326(a) & (b)(2) and 6 U.S.C. §§ 202 and 557.
In part, Prieto asserts that the district court erred when
it imposed an eight-level enhancement because he previously had
been convicted of an aggravated felony. This argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
*
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this opinion should not be published and is not precedent except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. 04-11493
-2-
(1998), which this court must follow "unless and until the
Supreme Court itself determines to overrule it.” United States
v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir. 2005)
(internal quotation marks and citation omitted).
Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),
Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States
v. Booker, 125 S. Ct. 738 (2005), Prieto also argues that his
constitutional rights were violated because the guidelines in
effect when he was sentenced were mandatory and imposed binding
requirements on all sentencing judges. The Government agrees
that Prieto preserved the Booker error and that the district
court committed Booker error when it sentenced Prieto under
mandatory, rather than advisory, guidelines.
When a Booker error is preserved, this court “will
ordinarily vacate the sentence and remand,” unless the error is
harmless. United States v. Pineiro, ___ F.3d ___, No. 03-30437,
2005 WL 1189713 at *2 (5th Cir. May 20, 2005) (internal quotation
marks and citation omitted). As the Government concedes that it
cannot satisfy its burden of proof under the harmless error
standard, Prieto’s sentence must be vacated, and this case must
be remanded for resentencing in light of Booker and United States
v. Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517).
We do not reach Prieto’s contention that a greater sentence
at resentencing would implicate due process and ex post facto
No. 04-11493
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concerns. Because we remand this matter to the district court
for resentencing in light of Booker and Mares, such an argument
is premature and need not be addressed. Amar v. Whitley, 100
F.3d 22, 23 (5th Cir. 1996) (noting that a federal court lacks
jurisdiction and the judicial resources to issue advisory
opinions); Matter of Talbott Big Foot, Inc., 924 F.2d 85, 87 (5th
Cir. 1991) (stating that the court does not give opinions upon
moot questions, abstract propositions, or rules of law not at
issue). We leave to the district court’s discretion whether it
will impose the same sentence with the same departures or
enhancements.
VACATED AND REMANDED FOR RESENTENCING.