United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 19, 2006
Charles R. Fulbruge III
Clerk
No. 05-40024
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
FRANCISCO JAVIER LOZANO-MIRELES
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1171-1
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Before KING, SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Francisco Javier Lozano-Mireles (“Lozano”) appeals his
conviction and the 18-month sentence he received after he pleaded
guilty to a charge of illegal re-entry to the United States, a
violation of 8 U.S.C. § 1326.
Lozano argues that the district court erred by
characterizing, for purposes of U.S.S.G. § 2L1.2(b)(1)(C), his
state felony conviction for possession of a controlled substance
as an “aggravated felony.” Lozano’s argument is foreclosed. See
*
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this opinion should not be published and is not precedent except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. 05-40024
-2-
United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.
1997). Jerome v. United States, 318 U.S. 101 (1943), does not
affect this precedent.
Lozano’s constitutional challenge to 8 U.S.C. § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Lozano 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). Lozano 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.
Lozano contends that his sentence must be vacated because he
was sentenced pursuant to mandatory sentencing guidelines that
were held unconstitutional in United States v. Booker, 125 S. Ct.
738 (2005). He asserts first that the error in his case is
reversible because the error is structural and is insusceptible
of harmless error analysis. Contrary to Lozano’s contention, we
have previously rejected this specific argument. See United
States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).
In the alternative, Lozano contends that the Government
cannot show that the error that occurred at his sentencing was
No. 05-40024
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harmless. We review Lozano’s preserved challenge to his sentence
for harmless error under FED. R. CRIM. P. 52(a). Walters, 418
F.3d at 463.
Lozano was sentenced at the bottom of the guideline range,
and the district court provided no commentary regarding the
sentence that it imposed. The record provides no indication, and
the Government has not shown, that the district court would not
have sentenced Lozano differently under an advisory guidelines
system. See United States v. Garza, 429 F.3d 165, 170-71 (5th
Cir. 2005). Accordingly, Lozano’s sentence is VACATED, and his
case is REMANDED for further proceedings consistent with this
opinion.
Lozano’s conviction is AFFIRMED; Lozano’s sentence is
VACATED; REMANDED.