United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 8, 2006
Charles R. Fulbruge III
Clerk
No. 04-11375
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO MARTINEZ-ESQUIVEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-140-ALL-L
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Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Juan Antonio Martinez-Esquivel appeals his conviction and
sentence for illegal reentry after a previous deportation.
Martinez-Esquivel first challenges the constitutionality of
8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Martinez-Esquivel’s
constitutional challenge to § 1326(b) is foreclosed by
*
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opinion should not be published and is not precedent except under the limited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.
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Martinez-Esquivel 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
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). Martinez-Esquivel
properly concedes that Almendarez-Torres has not been overruled.
Martinez-Esquivel argues that his sentence is illegal under
United States v. Booker, 125 S. Ct. 738 (2005), because it was
imposed pursuant to a mandatory application of the Sentencing
Guidelines. In the district court, Martinez-Esquivel objected to
the sentence under Blakely v. Washington, 542 U.S. 296 (2004). He
now raises the type of error raised by a second respondent in
Booker, Ducan Fanfan, i.e., that imposition of a sentence pursuant
to a mandatory Guidelines regime violated his rights. See Booker,
125 S. Ct. at 750, 768-69. The Government avers that Martinez-
Esquivel has preserved a Fanfan-type error for appeal and that it,
the Government, cannot show that the district court would not have
sentenced Martinez-Esquivel differently under an advisory
Guidelines regime.
Because the Government admits that it cannot show that the
district court would not have sentenced Martinez-Esquivel
differently under an advisory Guidelines system, see United States
v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005), we vacate the sentence
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and remand for resentencing in accordance with Booker. Martinez-
Esquivel’s argument that the Due Process and Ex Post Facto Clauses
bar the application of Justice Breyer’s remedy opinion in Booker is
foreclosed by our prior caselaw. See United States v. Scroggins,
411 F.3d 572, 576-77 (5th Cir. 2005).
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
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