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. 04-41387
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO HERNANDEZ-ARREDONDO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-273-ALL
--------------------
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Alberto Hernandez-Arredondo appeals his guilty-plea conviction
and sentence for illegal reentry into the United States by a
previously deported alien in violation of 8 U.S.C. § 1326(a)
and (b). He argues that the district court erred in imposing a
sentence pursuant to the mandatory United States Sentencing
Guidelines, which were invalidated in United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005). He argues that this error is
structural and not subject to harmless-error analysis. We have
*
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this opinion should not be published and is not precedent except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. 04-41387
-2-
rejected the argument that this error is structural. United States
v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126 S.
Ct. 194 (2005).
The Government concedes that Hernandez-Arredondo’s objection
pursuant to Blakely v. Washington, 542 U.S. 296 (2004), was
sufficient to preserve this argument for appeal. Therefore, we
review his sentence for harmless error. See United States v.
Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert. denied, 126 S. Ct.
43 (2005). Under that standard, the sentence will be vacated and
remanded unless the Government proves beyond a reasonable doubt
that the error was harmless--i.e., that it did not affect the
sentence Hernandez-Arredondo received. See United States v.
Walters, 418 F.3d 461, 463-65 (5th Cir. 2005).
The Government argues that the error was harmless because the
district court considered the Guidelines, the factors in 18 U.S.C.
§ 3553(a), and FED. R. CRIM. P. 32(d). The Government also argues
that the 57-month sentence was reasonable in light of the section
3553(a) factors and was well below the 20-year statutory maximum
sentence.
The Government’s contentions are insufficient to satisfy its
burden of demonstrating that the district court, operating under an
advisory Guidelines scheme, would have imposed the same sentence.
The Government’s assertions, without more, shed no light on how the
district court would have acted had it known that the Guidelines
No. 04-41387
-3-
were merely advisory. Accordingly, Hernandez-Arredondo’s sentence
is vacated, and the case is remanded for resentencing.
Hernandez-Arredondo also argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2)
are unconstitutional. His constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Hernandez-Arredondo 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). Hernandez-Arredondo 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, Hernandez-Arredondo’s conviction is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.