United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2006
Charles R. Fulbruge III
Clerk
No. 04-41405
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR VARGAS-RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-793-ALL)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Cesar Vargas-Ramirez (Vargas) appeals his
guilty-plea conviction and sentence for illegal re-entry of a
deported alien. Vargas was sentenced to 50 months of imprisonment
and three years of supervised release. He contends that his
sentence is illegal under United States v. Booker, 543 U.S. 220
(2005), because it was imposed pursuant to a mandatory application
of the Sentencing Guidelines. As the government concedes, Vargas
preserved this issue in the district court by objecting to his
sentence pursuant to Blakely v. Washington, 542 U.S. 296 (2004).
*
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this opinion should not be published and is not precedent except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.
Accordingly, our review is for harmless error. See United States
v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert. denied, 126 S.
Ct. 43 (2005).
The government has not carried its burden to show beyond a
reasonable doubt that the district court’s error did not affect
Vargas’s sentence. See United States v. Garza, 429 F.3d 165, 170
(5th Cir. 2005). Therefore, we vacate the sentence and remand for
resentencing in accordance with Booker. See Garza, 429 F.3d at
171. In light of Vargas’s resentencing, we do not address his
additional claim of sentencing error.
Vargas also asserts that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
This constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Vargas 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). Vargas candidly
concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, raising it here solely to
preserve it for further review. The judgment of conviction is
affirmed.
2
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR
RESENTENCING.
3