United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-50016
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM RODRIGUEZ-GONZALEZ, also know as Jose Luis Sanchez-
Flores,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1770-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
William Rodriguez-Gonzalez appeals his 27-month sentence
following his guilty-plea conviction for being unlawfully present
in the United States after having been deported, a violation of
8 U.S.C. § 1326. The indictment did not allege that Rodriguez-
Gonzalez’s deportation was subsequent to a felony or aggravated-
felony conviction, and it did not specifically cite to any
subsection of 18 U.S.C. § 1326. In pertinent part, the
sentencing guideline base offense level was increased twelve
*
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this opinion should not be published and is not precedent except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. 05-50016
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levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because Rodriguez-
Gonzalez was previously deported after a conviction for a felony
drug-trafficking offense for which the sentence imposed was 13
months or less. Rodriguez-Gonzalez objected to this increase on
the basis of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 124 S. Ct. 2531 (2004).
Rodriguez-Gonzalez argues that because the indictment did
not allege a prior conviction, it charged only a violation of
§ 1326(a) and under Apprendi his sentence violated due process
because it exceeded the two-year maximum punishment for the
§ 1326(a) offense charged. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-47
(1998). Although Rodriguez-Gonzalez contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi, 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). Rodriguez-Gonzalez 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.
Rodriguez-Gonzalez also argues that the district court
committed reversible error when it sentenced him pursuant to the
mandatory sentencing guidelines system held unconstitutional in
No. 05-50016
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United States v. Booker, 125 S. Ct. 738 (2005). Because the
district court sentenced Rodriguez-Gonzalez under a mandatory
guidelines regime, it committed Fanfan error. See United States
v. Valenzuela-Quevado, 407 F.3d 728, 733 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005); see also United States v. Walters,
418 F.3d 461, 463 (5th Cir. 2005)(discussing the difference
between Sixth Amendment Booker error and Fanfan error). “[I]f
either the Sixth Amendment issue presented in Booker or the issue
presented in Fanfan is preserved in the district court by an
objection, we will ordinarily vacate the sentence and remand,
unless we can say the error is harmless under Rule 52(a) of the
Federal Rules of Criminal Procedure.” United States v. Pineiro,
410 F.3d 282, 284-85 (5th Cir. 2005) (internal quotation marks
and citation omitted). The Government concedes that Rodriguez-
Gonzalez’s objection on the basis of Blakely, was sufficient to
preserve his Fanfan claim and that it cannot show that the error
was harmless. The sentencing transcript supports the
Government’s concession. Accordingly, we VACATE Rodriguez-
Gonzalez’s sentence and REMAND to the district court for re-
sentencing.