United States v. Arevalo-Lozano

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 2, 2006

Charles R. Fulbruge III
Clerk
No. 04-41153
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ALFREDO AREVALO-LOZANO,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-277-ALL
--------------------

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Alfredo Arevalo-Lozano (“Arevalo”) appeals his

conviction and the 63-month sentence he received for his

conviction on his guilty plea to a charge of illegal re-entry to

the United States, a violation of 8 U.S.C. § 1326.

Arevalo’s constitutional challenge to 8 U.S.C. § 1326 is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998). Although Arevalo contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

*
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this opinion should not be published and is not precedent except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.
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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). Arevalo 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. Accordingly, Arevalo’s conviction is AFFIRMED.

Arevalo contends that his sentence must be vacated because

he was sentenced pursuant to mandatory sentencing guidelines that

were held unconstitutional in United States v. Booker, 543 U.S.

220 (2005). He asserts that the error in his case is reversible

because the error is structural and is insusceptible of harmless

error analysis. Contrary to Arevalo’s contention, we have

previously rejected this specific argument. See United States v.

Walters, 418 F.3d 461, 463 (5th Cir. 2005).

In the alternative, Arevalo contends that the Government

cannot show that the error that occurred at his sentencing was

harmless. We review Arevalo’s preserved challenge to his

sentence for harmless error under FED. R. CRIM. P. 52(a). See

Walters, 418 F.3d at 463.

Arevalo was sentenced at the bottom of the guideline range,

and the district court stated that Arevalo’s sentence seemed

lengthy for his crime. The record provides no indication, and

the Government has not shown, that the district court would not
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have sentenced Arevalo differently under an advisory guidelines

system. See United States v. Garza, 429 F.3d 165, 170-71 (5th

Cir. 2005). Accordingly, Arevalo’s sentence is VACATED, and his

case is REMANDED for further proceedings consistent with this

opinion.

AFFIRMED IN PART; VACATED IN PART; REMANDED.