United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 10, 2006
Charles R. Fulbruge III
Clerk
No. 04-41713
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS CARRASCO-CASTRO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1163-1
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Luis Carrasco-Castro appeals the 30-month sentence
imposed following his guilty-plea conviction of illegally
reentering the United States after deportation, in violation of
8 U.S.C. § 1326. Carrasco-Castro argues that his sentence should
be vacated and remanded because the district court sentenced him
under a mandatory Guideline scheme held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005). The Government
concedes that error occurred, but it notes that the error was
*
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this opinion should not be published and is not precedent except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. 04-41713
-2-
nonconstitutional in nature and argues that the error was
harmless.
Because Carrasco-Castro preserved his “Fanfan” challenge in
the district court by raising an objection based on Blakely v.
Washington, 124 S. Ct. 2531 (2004), we review for harmless error.
United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). The
Government bears the burden of proving beyond a reasonable doubt
that the district court would not have sentenced Carrasco-Castro
differently under an advisory guideline sentencing regime. See
id. at 464.
The instant record fails to provide clear commentary from
the district court regarding whether it would have imposed the
same sentence in a post-Booker environment. See id. The
Government thus has not carried its burden of showing harmless
error. See id. We therefore remand Carrasco-Castro’s case for
resentencing.
Carrasco-Castro challenges the constitutionality of 8 U.S.C.
§ 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Carrasco-Castro 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. 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.),
No. 04-41713
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cert. denied, 126 S. Ct. 298 (2005). Carrasco-Castro 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.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.