United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 9, 2006
Charles R. Fulbruge III
Clerk
No. 05-40010
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO GARCIA-LEAL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1828-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Rolando Garcia-Leal (Garcia) appeals his guilty-plea
conviction and sentence for illegal reentry after deportation.
He was sentenced to 41 months of imprisonment and three years of
supervised release. Garcia asserts that his sentence is invalid
in light of United States v. Booker, 125 S. Ct. 738 (2005).
Because the district court sentenced Garcia under a mandatory
guidelines regime, it committed a Fanfan error. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert.
*
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this opinion should not be published and is not precedent except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. 05-40010
-2-
denied, 126 S. Ct. 267 (2005). Because the Government concedes
that Garcia preserved his Fanfan claim, this court reviews for
harmless error. United States v. Walters, 418 F.3d 461, 463-64
(5th Cir. 2005); 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
Garcia 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, Garcia’s sentence is vacated and the case
is remanded for resentencing.
Garcia also asserts that the district court erred in
ordering him to cooperate in the collection of a DNA sample as a
condition of supervised release and that this condition should
therefore be vacated. This claim is dismissed for lack of
jurisdiction because it is not ripe for review. United States v.
Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005).
Garcia further asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Garcia’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Garcia contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
No. 05-40010
-3-
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). Garcia 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.
APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION; SENTENCE
VACATED; REMANDED FOR RESENTENCING.