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. 04-41023
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE NAVARETTE-JACINTO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-380-1
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Navarette-Jacinto appeals his guilty-plea conviction
and sentence for illegal reentry into the United States following
deportation. He argues that the district court committed
reversible error under United States v. Booker, 125 S. Ct. 738
(2005), by sentencing him pursuant to a mandatory application of
the guidelines. As the Government concedes, Navarette preserved
this issue for review by raising an objection based upon Blakely
v. Washington, 542 U.S. 296 (2004), in the district court. See
*
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this opinion should not be published and is not precedent except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. 04-41023
-2-
United States v. Walters, 418 F.3d 461, 462-63 (5th Cir. 2005).
Accordingly, the question before us “is whether the government
has met its burden to show harmless error beyond a reasonable
doubt.” Id. at 464.
The district court erred by sentencing Navarette under the
mistaken belief that the guidelines were mandatory. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005). The district court sentenced
Navarette at the low end of the guidelines range, and nothing in
the record indicates what sentence it would have imposed had it
known that the guidelines were advisory. In these circumstances,
the Government has not met its “arduous burden” of showing that
the error was harmless. United States v. Garza, 429 F.3d 165,
170 (5th Cir. 2005) (internal quotation marks omitted).
Accordingly, we vacate Navarette’s sentence and remand to the
district court for resentencing.
Navarette’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Navarette 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. 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). Navarette properly concedes
No. 04-41023
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that his argument is foreclosed in light of Almendarez-Torres and
circuit precedent, but he raises it here to preserve it for
further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.