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. 04-20870
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME ALVAREZ-ONTIVEROS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-421-ALL
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Jaime Alvarez-Ontiveros appeals his conviction of unlawful
presence in the United States after deportation following an
aggravated felony conviction and his sentence. He raises three
issues in this appeal.
First, he argues that his prior burglary-of-a-habitation
conviction is not a “crime of violence” supporting the 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). This argument
*
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this opinion should not be published and is not precedent except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. 04-20870
-2-
is foreclosed. See United States v. Garcia-Mendez, 420 F.3d 454,
456-57 (5th Cir. 2005).
Second, Alvarez-Ontiveros argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and
(b)(2) are unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). Alvarez-Ontiveros’ constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Alvarez-Ontiveros 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). Alvarez-Ontiveros 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.
Finally, Alvarez-Ontiveros argues that the district court
reversibly erred under United States v. Booker, 543 U.S. 220
(2005), by sentencing him pursuant to a mandatory application of
the sentencing guidelines. The Government concedes that Alvarez-
Ontiveros has preserved this issue for appeal. The Government
has not shown beyond a reasonable doubt that the error was
harmless. See United States v. Walters, 418 F.3d 461, 463-64
No. 04-20870
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(5th Cir. 2005). Accordingly, Alvarez-Ontiveros’ sentence is
vacated, and this case is remanded for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.