United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41404
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
FRANCISCO GUTIERREZ-MENDEZ,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-911-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Francisco Gutierrez-Mendez (Gutierrez) appeals the sentence imposed upon his guilty-plea
conviction for illegal reentry. 8 U.S.C. § 1326. Gutierrez argues that the district court reversibly
erred under United States v. Booker, 125 S. Ct. 738 (2005), by sentencing him pursuant to a
mandatory application of the Sentencing Guidelines.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
There was no “Booker” error or Sixth Amendment violation because the only enhancement
to Gutierrez’s sentence was for his prior conviction. See Booker, 125 S. Ct. at 756, 769.
Nevertheless, the district court committed “Fanfan” error by sentencing Gutierrez pursuant to a
mandatory guidelines scheme. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).
The Government concedes that Gutierrez preserved his Fanfan claim. As such, this court
reviews the claim for harmless error. See Walters, 418 F.3d at 464. This court has rejected the
argument that a Fanfan error is structural. See Walters, 418 F.3d at 463.
There is no indication in the record that the district court would have imposed the same
sentence had the guidelines been advisory rather than mandatory. The Government has not satisfied
its burden of showing that the district court’s Fanfan error was harmless beyond a reasonable doubt.
See Walters, 418 F.3d at 463-64. Accordingly, we vacate the sentence and remand for resentencing
in accordance with Booker.
Gutierrez argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. §
1326(b)(1) and (b)(2) are unconstitutional on their face and as applied in his case in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000). Gutierrez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Gutierrez 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). Gutierrez 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, Gutierrez’s conviction is affirmed.
-2-
This court need not address at this time Gutierrez’s remaining argument challenging the
district court’s denial of his request for a downward departure. See United States v. Akpan, 407 F.3d
360, 377 n.62 (5th Cir. 2005).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
-3-