United States v. Hernandez-Martinez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2006

Charles R. Fulbruge III
Clerk
No. 04-41231
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUBEN SANCHEZ HERNANDEZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-329-ALL
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Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

Ruben Sanchez-Hernandez (Sanchez) pleaded guilty to illegal

reentry after deportation and was sentenced to 57 months of

imprisonment, three years of supervised release, and a $100 special

assessment that was ordered remitted on the Government’s motion.

Sanchez argues that the district court committed reversible

error when it sentenced him pursuant to the mandatory federal

Sentencing Guidelines system held unconstitutional in United States

v. Booker, 543 U.S. 220 (2005). The erroneous application of the

*
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opinion should not be published and is not precedent except under the limited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.
guidelines as mandatory is technically a “Fanfan error.” See

United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert.

denied, 126 S. Ct. 464 (2005). The Government concedes that

Sanchez preserved his Fanfan claim for appeal and that the issue is

reviewed for harmless error. See United States v. Walters,

418 F.3d 461, 463 (5th Cir. 2005).

Sanchez argues that he is entitled to resentencing because

application of the Sentencing Guidelines as mandatory constituted

structural error. However, this issue is foreclosed. See id.

Sanchez also contends that the record does not disclose that the

district court’s error was harmless beyond a reasonable doubt. The

Government argues that any error by the district court was

harmless. However, in support of this assertion, the Government

contends only that the district court acted reasonably in taking

into account the Sentencing Guidelines and the presentence report

when it sentenced Sanchez. The sentencing transcript is silent

with regard to whether the district court would have applied the

same sentence had the Guidelines been advisory only. Furthermore,

Sanchez’s 57-month term of imprisonment is at the bottom of the

applicable guideline range. Under such circumstances, the

Government has not met its burden of proving the error harmless

beyond a reasonable doubt. See id. We therefore VACATE the

sentence and REMAND for resentencing in accordance with Booker.

Sanchez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

2
Although Sanchez 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). Sanchez 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. The judgment

of conviction is AFFIRMED.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.