United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 21, 2006
Charles R. Fulbruge III
Clerk
No. 04-11191
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE LUIS RIOS-CASIO
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-175-ALL-P
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Jose Luis Rios-Casio (Rios) appeals his conviction and
sentence following his plea of guilty to illegally reentering the
United States after having been deported. Rios’s constitutional
challenge to 8 U.S.C. § 1326 (a) & (b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rios contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly
*
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this opinion should not be published and is not precedent except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. 04-11191
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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). Rios
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.
Rios argues that the increase in his offense level pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(ii) was unconstitutional under
United States v. Booker, 543 U.S. 220 (2005), because it was
based upon facts not pled in the information, proved to a jury,
or admitted by him. He also argues that the district court’s
mandatory application of the Sentencing Guidelines was error
under Booker. Because Rios preserved both arguments in the
district court, this court’s review is for harmless error. See
United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005);
United States v. Walters, 418 F.3d 461 (5th Cir. 2005). Under
the harmless-error standard, the Government must show “that the
error did not affect the outcome of the district court
proceedings, i.e., that the district court would have imposed the
same sentence absent the error.” Pineiro, 410 F.3d at 286.
The Government concedes that the district court’s mandatory
application of the Guidelines in determining Rios’s sentence was
error. The Government also concedes that it cannot establish
that the district court’s error was harmless. Nothing in the
record suggests that the district court would have imposed the
No. 04-11191
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same sentence under an advisory regime. Accordingly, Rios’s
sentence must be vacated, and this case must be remanded for
resentencing in light of Booker. See Pineiro, 410 F.3d at 286.
We do not reach Rios’s contention that the district court’s
application of § 2L1.2 ran afoul of Booker. See United States v.
Apkan, 407 F.3d 360, 377 n.62 (5th Cir. 2005). Nor do we reach
Rios’s contention regarding the applicability of Booker to the
imposition of a sentence upon remand. See Amar v. Whitley, 100
F.3d 22, 23 (5th Cir. 1996) (federal court may not issue advisory
opinions). We leave to the district court’s discretion whether
it will impose the same sentence upon remand.
AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR
RESENTENCING.