United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-41531
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EDGAR GUADALUPE GONZALEZ-SILVA
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-841-ALL
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Edgar Guadalupe Gonzalez-Silva (Gonzalez) appeals his
conviction and sentence for illegal reentry after a previous
deportation. Gonzalez argues that the district reversibly erred
under United States v. Booker, 125 S. Ct. 738 (2005), by
sentencing him pursuant to a mandatory application of the
Sentencing Guidelines.
There was no “Booker” error or Sixth Amendment violation
because the only enhancement to Gonzalez’s sentence was for his
*
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this opinion should not be published and is not precedent except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. 04-41531
-2-
prior conviction. See Booker, 125 S. Ct. at 756, 769.
Nevertheless, the district court committed “Fanfan” error by
sentencing Gonzalez pursuant to a mandatory guidelines scheme.**
See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.
2005).
The Government concedes that Gonzalez preserved his Fanfan
claim. As such, this court reviews the claim for harmless error.
See Walters, 418 F.3d at 464. There is no indication in the
record that the district court would have imposed the same
sentence had the guidelines been advisory rather than mandatory.
Accordingly, we vacate the sentence and remand for resentencing
in accordance with Booker.
As Gonzalez acknowledges, his challenge to the district
court’s eight-level sentence enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C) is foreclosed by circuit precedent. See United
States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997);
see also United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir.
2001). Jerome v. United States, 318 U.S. 101 (1943), does not
affect the binding precedential value of Rivera and
Hinojosa-Lopez because it is not an intervening Supreme Court
case that explicitly or implicitly overruled Hinojosa-Lopez. See
Martin v. Medtronic, Inc., 254 F.3d 573, 576-77 (5th Cir. 2001).
**
Gonzalez’s argument that the error was structural has
been rejected by this court. United States v. Martinez-Lugo, 411
F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005).
No. 04-41531
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Gonzalez argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional on their face and as applied in his case in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Gonzalez’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Gonzalez
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). Gonzalez 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, Gonzalez’s conviction is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.