United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 3, 2006
Charles R. Fulbruge III
Clerk
No. 04-40874
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE CHAPA-CONTRERAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-382-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Jose Chapa-Contreras (Chapa) appeals following his
guilty-plea conviction and 37-month sentence for being found in
the United States after a previous deportation. Chapa first
argues that his sentence should be vacated because it was imposed
pursuant to a mandatory application of the Sentencing Guidelines,
in violation of United States v. Booker, 125 S. Ct. 738, 756-57
(2005).
*
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this opinion should not be published and is not precedent except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. 04-40874
-2-
The Government concedes the error, and it further concedes
that Chapa’s objection under Blakely v. Washington, 542 U.S. 296
(2004), preserved the issue for appellate review. However, the
Government contends that the error is harmless.
The Government bears the burden of showing that a Booker
error was harmless beyond a reasonable doubt. United States v.
Pineiro, 410 F.3d 282, 284 (5th Cir. 2005). The Government has
failed to show “that the district court would have imposed the
same sentence absent the error.” Id. at 286. Accordingly, we
will vacate Chapa’s sentence and remand for resentencing.
For the first time on appeal, Chapa 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). Chapa
contends that his conviction should be reduced to one under
8 U.S.C. § 1326(a)(2) and the judgment reformed to reflect
conviction only under that provision.
Chapa’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Chapa 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,
No. 04-40874
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276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Chapa
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. Chapa’s conviction is affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.