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. 04-41380
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIAN GARCIA-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-736-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Julian Garcia-Contreras (Garcia) appeals his conviction and
sentence for illegal reentry. Garcia challenges the
constitutionality of 8 U.S.C. § 1326(b)(1) and (2) and,
additionally, the district court’s application of the mandatory
Sentencing Guidelines.
Garcia’s constitutional challenge to § 1326(b) is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Garcia contends that Almendarez-Torres was incorrectly
*
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this opinion should not be published and is not precedent except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. 04-41380
-2-
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). Garcia 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.
Garcia also contends that the district court erred in
sentencing him pursuant to the mandatory Sentencing Guidelines
regime held unconstitutional in United States v. Booker, 543 U.S.
220, 125 S. Ct. 738, 764-65 (2005). The sentencing transcript is
devoid of evidence that the district court would have imposed the
same sentence under an advisory regime, and, therefore, the
Government has not borne its burden of establishing beyond a
reasonable doubt that the district court’s error was harmless.
See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
Thus, Garcia’s sentence is vacated, and the case is remanded for
further proceedings. See id. at 466.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.