United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 26, 2006
Charles R. Fulbruge III
Clerk
No. 04-41496
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS SANTANA-ALVARADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1078-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Carlos Santana-Alvarado appeals his 46-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 Santana-
Alvarado’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 sixteen
*
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this opinion should not be published and is not precedent except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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levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Santana-
Alvarado was previously deported after a state deferred-
adjudication conviction for aggravated assault with a deadly
weapon, a crime of violence. Santana-Alvarado 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).
Santana-Alvarado challenges the constitutionality of 8
U.S.C. § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235, 239-47 (1998). Although Santana-Alvarado
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). Santana-Alvarado 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.
Santana-Alvarado also argues that the district court
committed reversible error when it sentenced him pursuant to the
mandatory sentencing guidelines system held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005). The Government
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concedes that Santana-Alvarado’s objection on the basis of
Blakely preserved this issue. Because the district court
sentenced Santana-Alvarado 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).
“Thus, the only question is whether the Government has met
its burden to show harmless error beyond a reasonable doubt in
the imposition of [Santana’s] sentence.” Walters, 418 F.3d at
464.1 Santana-Alvarado concedes that his argument that the error
was structural in nature and thus not subject to harmless-error
review is foreclosed by United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005), but he
raises the argument to preserve it for further review. We are
not persuaded by the Government’s argument that the error was
harmless, particularly in light of the district court’s lack of
1
Although we must follow the panel’s decision in Walters, United States
v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999), we note that the standard of
review it applied - requiring the Government to show that preserved Fanfan
error was harmless beyond a reasonable doubt - was not contested in the case
and appears to be incorrect because Fanfan error is nonconstitutional error,
see United States v. Hughes, 410 F.3d 540, 553 (4th Cir. 2005) (pointing out
that Fanfan error, unlike Booker error, is nonconstitutional). Rather,
“harmless error” in Fanfan cases is defined by the standard announced in
Kotteakos v. United States, 328 U.S. 750, 776 (1946). See United States v.
Hernandez-Guevara, 162 F.3d 863, 876 (5th Cir. 1998) (applying Kotteakos to
preserved nonconstitutional error). But the issue is irrelevant here because
the Government cannot meet either burden.
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clear commentary regarding the sentence and its decision to
sentence at the bottom of the applicable guideline range.
Accordingly, we VACATE Santana-Alvarado’s sentence and
REMAND to the district court for re-sentencing.