United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 11, 2006
Charles R. Fulbruge III
Clerk
No. 04-41571
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLOS VILLAFUERTE-NAVARRO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-702-1
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Carlos Villafuerte-Navarro (Villafuerte) pleaded guilty to
unlawfully re-entering the United States in violation of 8 U.S.C.
§ 1326(a). He challenges the district court’s imposition of a
16-level enhancement for a prior felony conviction pursuant to
U.S.S.G. § 2L1.2, arguing that the enhancement violates the rule
announced in United States v. Booker, 543 U.S. 220 (2005).
As the enhancement was based on a prior conviction, there is
no Sixth Amendment Booker error. Rather, the error was the
*
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this opinion should not be published and is not precedent except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. 04-41571
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application of the Sentencing Guidelines as mandatory, which we
have termed “Fanfan” error. See United States v. Walters, 418 F.3d
461, 463 (5th Cir. 2005). As with Booker error, when “Fanfan”
error is preserved in the district court, this court “will
ordinarily vacate the sentence and remand, unless [the court] can
say the error was harmless.” United States v. Mares, 402 F.3d 511,
520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). As
Villafuerte objected to the application of the Guidelines to him,
we review for harmless error. See Walters, 418 F.3d at 464. We
reject Villafuerte’s contention that “Fanfan” error is structural
and, therefore, insusceptible of harmless error analysis. See
Walters, 418 F.3d at 463.
To show harmless error, the Government must demonstrate
“beyond a reasonable doubt that the district court would not have
sentenced [the defendant] differently had it acted under an
advisory Guidelines regime.” United States v. Akpan, 407 F.3d 360,
376-77 (5th Cir. 2005). In light of Walters, we reject the
Government’s contention that the “harmless beyond a reasonable
doubt” standard is inapplicable.
The Government has not met its burden. The record contains no
indication as to what the district court would have done had it
been aware that it was not bound to apply the Sentencing
Guidelines. The Government’s contention that the district court’s
sentence at the low end of the Guidelines reflected that the court
considered the Guidelines and the factors set forth in 18 U.S.C.
No. 04-41571
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§ 3553(a) and took into account Villafuerte’s objection that his
criminal history was over-represented is unavailing. Those facts
tell us nothing more than that, within the then-mandatory
Guidelines framework, the district court believed that the sentence
was appropriate. They shed no light on what sentence the district
court would have imposed had it been given the greater discretion
afforded by an advisory Guidelines scheme. As we cannot say that
the mandatory application of the Guidelines did not affect
Villafuerte’s sentence, Villafuerte’s sentence must be vacated and
the case must be remanded for re-sentencing.
Villafuerte also asserts that the enhanced penalty provisions
of 8 U.S.C. § 1362(b) are unconstitutional. Villafuerte’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Villafuerte
contends that Almendarez-Torres was incorrectly decided and that a
majority of the Supreme Court would overrule Almendarez-Torres in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have
repeatedly rejected such arguments on the basis that Almendarez-
Torres remains binding. See United States v. Garza-Lopez, 410 F.3d
268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Villafuerte properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but he raises it
here to preserve it for further review.
No. 04-41571
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For the foregoing reasons, we AFFIRM Villafuerte’s conviction.
We VACATE his sentence and REMAND to the district court for re-
sentencing.
AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR RE-
SENTENCING.