United States v. Jimenez-Sanchez

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.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-748-ALL)
--------------------

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this opinion should not be published and is not precedent except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

2
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.