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. 04-41381
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO JIMENEZ-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-748-ALL)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Alejandro Jimenez-Sanchez (“Jimenez”)
appeals his conviction and the 46-month sentence imposed following
his plea of guilty to a charge of illegal reentry to the United
States, a violation of 8 U.S.C. § 1326. We affirm his conviction
but vacate his sentence and remand.
Jimenez 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
*
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this opinion should not be published and is not precedent except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.
(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 Jimenez’s contention, we have
previously rejected this specific argument. See United States v.
Walters, 418 F.3d 461, 463 (5th Cir. 2005).
The government concedes that Jimenez’s objections preserved
the sentencing issue for harmless error review. Jimenez contends
that the government cannot show that the error that occurred at his
sentencing was harmless. We review Jimenez’s challenge to his
sentence for harmless error under FED. R. CRIM. P. 52(a). See
Walters, 418 F.3d at 463.
Jimenez was sentenced at the bottom of the guideline range,
and the district court made no comment regarding the sentence. The
record provides no indication, and the government has not met its
burden of showing that the district court would not have sentenced
Jimenez differently under an advisory guidelines system. See
United States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005).
Thus, the error was not harmless as a matter of law. Accordingly,
Jimenez’s sentence is VACATED, and his case is REMANDED for further
proceedings consistent with this opinion.
Jimenez’s constitutional challenge to 8 U.S.C. § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Jimenez 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
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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). Jimenez 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,
Jimenez’s conviction is AFFIRMED.
AFFIRMED IN PART; VACATED IN PART; REMANDED.
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