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. 04-41283
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE ROBERTO MEJIA-MEDINA
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-357-1
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Jose Roberto Mejia-Medina (Mejia) appeals his sentence
following his guilty plea conviction for illegal reentry. Mejia
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). Mejia’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Mejia contends
that Almendarez-Torres was incorrectly decided and that a
*
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this opinion should not be published and is not precedent except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. 04-41283
-2-
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). Mejia 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.
Mejia also 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 federal Sentencing
Guidelines. The Government concedes that Mejia has preserved
this issue for appeal. The Government, however, has not shown
beyond a reasonable doubt that the error was harmless. See
United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).
Accordingly, Mejia’s sentence is VACATED, and this case is
REMANDED for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.