United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 27, 2006
Charles R. Fulbruge III
No. 04-41277 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GONZALEZ-MENDOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-121-ALL
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Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Gonzalez-Mendoza (Gonzalez) appeals following his
conviction and sentence for illegal reentry of the United States
following deportation. Gonzalez contends that the district court
reversibly erred under United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005), by sentencing him pursuant to a mandatory
application of the Sentencing Guidelines. There was no “Booker”
error or Sixth Amendment violation because the only enhancement
to Gonzalez’s sentence was for his prior conviction. See Booker,
125 S. Ct. at 756, 769. Nevertheless, the district court
*
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this opinion should not be published and is not precedent except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. 04-41277
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committed “Fanfan” error by sentencing Gonzalez pursuant to a
mandatory application of the Sentencing Guidelines. See United
States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). We have
previously rejected Gonzalez’s claim that such error is
“structural” in nature. See id. at 463.
The Government concedes that Gonzalez preserved his Fanfan
argument. Accordingly, this court reviews the claim for harmless
error. See id. at 464.
The Government argues that the district court’s error in
sentencing under a mandatory application of the Sentencing
Guidelines was harmless because the district court determined
Gonzalez’s sentence by considering the Sentencing Guidelines and
the factors set forth in 18 U.S.C. § 3553(a). Because the
Government has failed to carry its burden of showing beyond a
reasonable doubt that the error did not affect Gonzalez’s
sentence, we will vacate the sentence and remand for
resentencing. See id.
Gonzalez contends that the district court erred in
determining that his California marijuana conviction was a “drug
trafficking offense” under U.S.S.G § 2L1.2(b)(1)(B). He argues
that this court would violate Fed. R. Crim. P. 32(i)(3)(B) if it
resolved this claim by relying on a transcript of his California
guilty plea hearing, which was supplemented into the record over
his objection. Because we vacate Gonzalez’s sentence due to the
mandatory application of the Sentencing Guidelines, it is not
No. 04-41277
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necessary to address these arguments. See United States v.
Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
Gonzalez argues that the provisions of 8 U.S.C. § 1326(b)
are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). Gonzalez’s constitutional challenge to § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Gonzalez 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). Gonzalez properly concedes that his argument
is foreclosed in light of Almendarez-Torres and circuit
precedent, but he raises it to preserve it for further review.
SENTENCE VACATED; CONVICTION AFFIRMED; REMANDED FOR
RESENTENCING.