United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 23, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41386
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LIBORIO CISNEROS-JIMENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-509-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Liborio Cisneros-Jimenez appeals his guilty-plea conviction and sentence for being found
in the United States, without permission, following deportation. See 8 U.S.C. § 1326(a), (b). He
contends that the sentencing provisions in 8 U.S.C. § 1326(b) are unconstitutional because they do
not require the fact of a prior felony or aggravated felony conviction to be treated as an element of
the offense and proved beyond a reasonable doubt. Cisneros-Jimenez’s constitutional challenge is
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Cisneros-
Jimenez 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).
Cisneros-Jimenez 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. Accordingly, Cisneros-
Jimenez’s conviction is AFFIRMED.
Cisneros-Jimenez also argues that the district court committed reversible error when it
sentenced him pursuant to the mandatory United States Sentencing Guidelines scheme held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005). By sentencing Cisneros-Jimenez
under a mandatory guidelines regime, the district court committed what this court refers to as Fanfan
error. See United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). The Government concedes
that Cisneros-Jimenez preserved his Fanfan claim for appellate review, that the district court’s actions
are reviewed for harmless error, and that it cannot show that the error was harmless. See id. at
463-64. The sentencing transcript supports the Government’s concession. We therefore we
VACATE Cisneros-Jimenez’s sentence and REMAND the case for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
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