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. 05-40006
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYNALDO ENRIQUE LOPEZ-ZELADON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1408-ALL
--------------------
Before REAVLEY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Reynaldo Enrique Lopez-Zeladon (Lopez) appeals from his
conviction of illegal reentry following deportation.
Lopez challenges the constitutionality of 8 U.S.C.
§ 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rodriguez 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
*
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this opinion should not be published and is not precedent except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. 05-40006
-2-
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). Lopez 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.
Lopez contends that the district court’s imposition of
sentence under the formerly mandatory Sentencing Guidelines
scheme constituted reversible error, pursuant to United States v.
Booker, 125 S. Ct. 738 (2005). Lopez further contends that the
Government cannot demonstrate that the district court’s error was
harmless beyond a reasonable doubt. The Government concedes that
error occurred, but it notes that the error was nonconstitutional
in nature, it and argues that the error was harmless.
Because Lopez preserved his “Fanfan” challenge in the
district court by raising an objection based on Blakely v.
Washington, 124 S. Ct. 2531 (2004), we review for harmless error.
United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). The
Government bears the burden of proving beyond a reasonable doubt
that the district court would not have sentenced Lopez
differently under an advisory guideline sentencing regime. See
id. at 464.
Although the district court sentenced Lopez to the low end
of the applicable, level-21, category-IV, sentencing range, its
No. 05-40006
-3-
comment that category III was fair, and its selection of a
sentence in the “overlap zone” of categories III and IV, suggests
that the court might have selected another sentence had the
guidelines been advisory. The Government has failed to
demonstrate beyond a reasonable doubt that the district court
would not have sentenced Lopez differently under an advisory
guidelines sentencing regime. See Walters, 418 F.3d at 464. The
Government thus has not carried its burden of showing harmless
error. See id. We therefore remand Lopez’s case to the district
court to determine whether resentencing is needed.
AFFIRMED WITH REMAND FOR RECONSIDERATION OF THE SENTENCE.