United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 7, 2006
Charles R. Fulbruge III
Clerk
No. 04-41513
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NORBERTO GALVAN-MARIQUES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-960-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Norberto Galvan-Mariques (Galvan) appeals his guilty-plea
conviction and 27-month prison sentence for illegally re-entering
the United States after deportation, in violation of 8 U.S.C.
§ 1326.
Galvan argues that, under United States v. Booker, 543 U.S.
220 (2005), the district court erred when it sentenced him
pursuant to the pre-Booker mandatory sentencing guidelines
regime. He is correct. See United States v. Valenzuela-Quevedo,
407 F.3d 728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267
*
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this opinion should not be published and is not precedent except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. 04-41513
-2-
(2005). By stating that a harmless-error standard of review
applies to this “Fanfan” challenge, the Government concedes that
Galvan preserved the challenge for appellate review. We review a
preserved challenge to the mandatory application of the
Sentencing Guidelines for harmless error, and the Government
bears the burden of showing harmlessness. United States v.
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Before an error
can be held harmless, the Government must “point to . . . record
evidence that would prove beyond a reasonable doubt that the
district court would not have sentenced [the defendant] different
had it acted under an advisory Guidelines regime.” United States
v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005). Because the
Government has not met this burden, we vacate Galvan’s sentence
and remand for resentencing.
Galvan’s constitutional challenge to the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Galvan contends that Almendarez-Torres was
incorrectly decided, we have repeatedly rejected such arguments
on the basis that Almendarez-Torres remains binding. United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Galvan 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. We affirm Galvan’s conviction.
SENTENCE VACATED AND REMANDED; CONVICTION AFFIRMED.