United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 25, 2006
Charles R. Fulbruge III
Clerk
No. 04-41520
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERTO SALAZAR-PALACIOS
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-992-ALL
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Before KING, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Roberto Salazar-Palacios (“Salazar”) appeals the sentence
imposed following his guilty-plea conviction of attempting to
reenter the United States after having been deported, in
violation of 8 U.S.C. § 1326. The district court sentenced
Salazar to 46 months in prison, based on a prior drug-trafficking
conviction.
Salazar contends that his sentence is illegal under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it
*
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this opinion should not be published and is not precedent except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. 04-41520
-2-
was imposed pursuant to a mandatory application of the federal
sentencing guidelines. Salazar thus alleges a “Fanfan” error.
See United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).
In the district court, Salazar objected to his sentence under
Blakely v. Washington, 542 U.S. 296 (2004), and the Government
concedes that the preserved Fanfan error is subject to review for
harmless error.
The Government has not carried its burden of showing beyond
a reasonable doubt that the district court’s error did not affect
Salazar’s sentence. See Walters, 418 F.3d 461, 464; United
States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005). We
therefore VACATE the sentence and REMAND for resentencing in
accordance with Booker. See Walters, 418 F.3d at 464; Pineiro,
410 F.3d at 286.
Salazar also contends that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
As he concedes, this argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), which this court must
follow “unless and until the Supreme Court itself determines to
overrule it.” United States v. Izaguirre-Flores, 405 F.3d 270,
277-78 (5th Cir.) (quotation marks omitted), cert. denied, 126
S. Ct. 253 (2005). Accordingly, the judgment of conviction is
AFFIRMED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.