United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-41546
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAXIMINO NINO-RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-959-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Maximino Nino-Rodriguez appeals the sentence imposed following
his guilty-plea conviction of illegally re-entering the United
States after having been deported, in violation of 8 U.S.C. § 1326.
The district court sentenced Nino to 41 months in prison and three
years of supervised release.
Nino claims his sentence is illegal under United States v.
Booker, 125 S. Ct. 738 (2005), because it was imposed pursuant to
a mandatory application of the Sentencing Guidelines. In district
*
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that this opinion should not be published and is not precedent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.
court, Nino objected to his sentence under Blakely v. Washington,
124 S. Ct. 2531 (2004). He now raises the type of error raised by
a second respondent in Booker, Ducan Fanfan (Fanfan error), by
claiming that imposition of a sentence pursuant to a mandatory
Guidelines regime violated his rights. See Booker, 125 S. Ct. at
750, 768-69. The Government concedes that Nino at least “arguably”
preserved his Fanfan-error claim for appeal and that the issue is
reviewed for harmless error. The Government explicitly waives any
argument that the Fanfan error at Nino’s sentencing was harmless and
does not oppose a remand for resentencing in accordance with Booker.
For the first time on appeal, Nino contends that the “felony"
and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional. As Nino concedes, this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (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.) (internal quotation marks and citation
omitted), cert. denied, ___ S. Ct. ___, 2005 WL 1786638 (U.S. 3 Oct.
2005).
AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR RESENTENCING.