United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 15, 2006
Charles R. Fulbruge III
Clerk
No. 04-11370
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANGEL HERNANDEZ-LAZARO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-176-ALL-R
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Angel Hernandez-Lazaro was convicted of illegal reentry
into the United States and sentenced to serve 42 months in prison
and a two-year term of supervised release. He first argues on
appeal that 8 U.S.C. § 1326(b) is unconstitutional. Hernandez-
Lazaro’s constitutional challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although
Hernandez-Lazaro 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.
*
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this opinion should not be published and is not precedent except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. 04-11370
-2-
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). Hernandez-Lazaro 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.
Hernandez-Lazaro’s argument that the Due Process and Ex Post
Facto Clauses bar the application of Justice Breyer’s remedy
opinion in United States v. Booker, 125 S. Ct. 738 (2005), when
resentencing defendants in light of Booker is foreclosed by our
prior caselaw. See United States v. Scroggins, 411 F.3d 572,
576-77 (5th Cir. 2005).
Hernandez-Lazaro contends that his sentence should be
vacated and remanded because the district court sentenced him
under the mandatory guidelines scheme held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005). Because the
district court sentenced Hernandez-Lazaro under a mandatory
guidelines regime, it committed Fanfan error. See United States
v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). When a Fanfan
error “is preserved in the district court by an objection, we
will ordinarily vacate the sentence and remand, unless we can say
the error is harmless.” United States v. Mares, 402 F.3d 511,
520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). The
Government concedes that this claim was preserved and that it
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cannot show that the Fanfan error that occurred in the instant
case was harmless.
We agree that the Government cannot meet its burden of
showing beyond a reasonable doubt that the district court would
have imposed the same sentence absent the error. See United
States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005). We
therefore vacate Hernandez-Lazaro’s sentence and remand for re-
sentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.