United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-41240
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE CERDA-TOVAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-412-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Cerda-Tovar appeals his sentence after
pleading guilty to being found in the United States after a
previous deportation. In his brief, which was filed before the
Supreme Court’s decision in United States v. Booker, 125 S. Ct.
738 (2005), Cerda-Tovar argues, to preserve for further review,
that the viability of Almendarez-Torres v. United States,
523 U.S. 224 (1998), is in doubt given Apprendi v. New Jersey,
530 U.S. 466 (2000), and that, under the view now held by a
*
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this opinion should not be published and is not precedent except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. 04-41240
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majority of the Supreme Court justices, the felony and aggravated
felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90. We must follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” United States v. Mancia-Perez,
331 F.3d 464, 470 (5th Cir.) (quotation marks and citation
omitted), cert. denied, 540 U.S. 935 (2003). Therefore, Cerda-
Tovar’s argument regarding the viability of Almendarez-Torres
fails. See id.
Cerda-Tovar also argues that the Government correctly
conceded that constitutional error occurred under Booker and that
the Government has the burden of proving that the error was
harmless beyond a reasonable doubt. However, Cerda-Tovar asserts
that (1) the Booker error in this case is structural and not
susceptible to harmless-error analysis; (2) even if harmless-
error analysis is appropriate, the error is not harmless beyond a
reasonable doubt; and (3) application of a reasonableness
standard of review is not appropriate because that standard was
applicable to pre-Booker cases.
Here, the only enhancements to Cerda-Tovar’s sentence were
based on his prior convictions. However, the district court
erred by imposing a sentence pursuant to a mandatory application
No. 04-41240
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of the Sentencing Guidelines. See Booker, 125 S. Ct. at 750,
768-69.
We review such error, assuming without deciding that it was
properly preserved, under the harmless-error standard. The
Government has carried its burden of showing that, even absent
the mandatory application of the guidelines, Cerda-Tovar’s
sentence would be the same. See United States v. Pineiro, 410
F.3d 282, 284 (5th Cir. 2005). Thus, the error is harmless in
light of the district court’s statement that it would impose the
same sentence. See United States v. Walters, 418 F.3d 461, 463
(5th Cir. 2005). The judgment of the district court is AFFIRMED.