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. 04-41583
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MARTINEZ-COVARRUBIAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-940-ALL
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Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Carlos Martinez-Covarrubias (“Martinez”) appeals his guilty-
plea conviction and 41-month sentence for illegal reentry after
deportation, a violation of 8 U.S.C. § 1326. Martinez’s
constitutional challenge to 8 U.S.C. § 1326 is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Martinez 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 U.S.
*
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this opinion should not be published and is not precedent except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. 04-41583
-2-
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). Martinez 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, Martinez’s conviction is AFFIRMED.
Martinez contends that his sentence must be vacated because
he was sentenced pursuant to the mandatory Sentencing Guidelines
regime that was held unconstitutional in United States v. Booker,
543 U.S. 220, 125 S. Ct. 738 (2005). He asserts that the error
in his case is reversible because the error is structural and not
subject to harmless error analysis. As Martinez concedes, we
have previously rejected this argument. See United States v.
Walters, 418 F.3d 461, 463 (5th Cir. 2005).
In the alternative, Martinez contends that the Government
cannot show that the sentencing error was harmless. We review
Martinez’s preserved challenge to his sentence for harmless error
under FED. R. CRIM. P. 52(a). Walters, 418 F.3d at 463. Martinez
was sentenced at the bottom of the applicable Sentencing
Guidelines range, and the Government has not shown that the
district court would not have sentenced Martinez differently
under an advisory Guidelines system. See United States v. Garza,
429 F.3d 165, 170-71 (5th Cir. 2005). Accordingly, Martinez’s
sentence is VACATED, and his case is REMANDED for further
No. 04-41583
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proceedings consistent with this opinion. Because we are
vacating the sentence imposed, we do not reach Martinez’s
argument that the district court erred in enhancing his offense
level by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).
See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir.
2005).
AFFIRMED IN PART; VACATED IN PART; REMANDED.