United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40179
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CRUZ CORTEZ-MELENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1631-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Cruz Cortez-Melendez appeals his conviction and
sentence following his plea of guilty to one count of unlawful
re-entry. Melendez first contends that the district court’s 16-
level enhancement of his offense level based on his prior drug
trafficking conviction violated his constitutional rights in
light of United States v. Booker, 125 S. Ct. 738 (2005). As the
enhancement was based on a prior conviction, there is no Sixth
Amendment error; rather, any error was in the application of the
Sentencing Guidelines as mandatory, which we have termed “Fanfan”
*
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this opinion should not be published and is not precedent except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. 05-40179
-2-
error. See United States v. Walters, 418 F.3d 464, 463 (5th Cir.
2005) (discussing the distinction between the two types of error
addressed in Booker). When “Fanfan” error is preserved in the
district court, this court “will ordinarily vacate the sentence
and remand, unless we can say the error was harmless.” United
States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005). As there is no indication in the record
that the district court would have imposed the same sentence
under an advisory rather than mandatory Guidelines scheme, the
Government cannot carry its burden of demonstrating harmless
error, a point that the Government effectively concedes. See
United States v. Akpan, 407 F.3d 360, 376-77 (5th Cir. 2005),
Cortez next argues that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b) are unconstitutional because
they treat prior convictions as sentencing factors rather than
offense elements. Cortez’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Cortez 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). Cortez properly concedes
that his argument is foreclosed in light of Almendarez-Torres and
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circuit precedent, but he raises it here to preserve it for
further review.
For the foregoing reasons, we AFFIRM Cortez’s conviction,
but we VACATE his sentence and REMAND for re-sentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.