United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 8, 2006
Charles R. Fulbruge III
No. 05-40007 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS LOERA-CENTENO, also known as J. Felix Loera-Centeno,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1493-ALL
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Before KING, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Carlos Loera-Centeno appeals from his guilty-plea conviction
and sentence for being found in the United States after having
been previously deported. He was sentenced to 55 months of
imprisonment and three years of supervised release. Loera-
Centeno asserts that his sentence is invalid in light of United
States v. Booker, 543 U.S. 220 (2005). Because the district
court sentenced Loera-Centeno under a mandatory guidelines
regime, it committed a Fanfan error. See United States v.
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Because the
*
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this opinion should not be published and is not precedent except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. 05-40007
-2-
Government concedes that Loera-Centeno preserved his Fanfan
claim, this court reviews for harmless error. Id.; United States
v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct.
43 (2005). Under this standard of review, the Government bears
the burden of proving beyond a reasonable doubt that the district
court would not have sentenced Loera-Centeno differently under an
advisory guidelines sentencing regime. Walters, 418 F.3d at 464.
The record contains no indication that the district court would
have imposed the same sentence absent the error. The Government
thus cannot meet its burden. Accordingly, Loera-Centeno’s
sentence is vacated and the case is remanded for resentencing.
Loera-Centeno’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Loera-Centeno 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.),
cert. denied, 126 S. Ct. 298 (2005). Loera-Centeno 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; REMANDED FOR
RESENTENCING.