United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 8, 2006
Charles R. Fulbruge III
Clerk
No. 04-41521
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME SANCHEZ-NAVARRO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(7:04-CR-543-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jaime Sanchez-Navarro appeals from his guilty-plea conviction
and sentence for illegal reentry following deportation, in
violation of 8 U.S.C. § 1326.
For the first time on appeal, Sanchez asserts the district
court erred in categorizing his previous Iowa-state convictions for
tampering with records and failure to appear as aggravated felonies
under Sentencing Guidelines § 2L1.2(b)(1)(C) (defendant previously
deported or unlawfully remained in the United States after
*
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this opinion should not be published and is not precedent except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.
conviction of an aggravated felony), resulting in an eight-level
increase in his offense level. He contends his offense level
should have been increased instead by four levels under Sentencing
Guidelines § 2L1.2(b)(1)(D) (defendant previously deported or
unlawfully remained in the United States after conviction of any
non-enumerated felony). The Government concedes this error and
seeks remand for resentencing.
Because the issue was not preserved in district court, our
review is only for plain error. See United States v. Olano, 507
U.S. 725, 732 (1993). Under that standard, Sanchez bears the
burden of showing there is a “clear” or “obvious” error that
affected his substantial rights. Id. If he is able to do so, we
have discretion to correct the error if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings”.
Id. (internal citations and quotation marks omitted) (alteration in
original).
Based on our review of the Iowa statutes and the charging
documents, we agree with the parties that neither of Sanchez’s Iowa
convictions was an aggravated felony under Sentencing Guidelines §
2L1.2(b)(1)(C). See United States v. Garza-Lopez, 410 F.3d 268,
273 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Moreover, on
this record, the error in sentencing Sanchez under a non-applicable
Sentencing was clear or obvious. See United States v. Franks, 46
F.3d 402, 405 (5th Cir. 1995) (holding the district court committed
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clear and obvious error where application of the wrong section of
the Sentencing Guidelines resulted in a higher sentencing range).
Because this error “affected the outcome of the district court
proceedings” by resulting in a higher sentencing range, we have
discretion to correct it. See Olano, 507 U.S. at 734. We hold
that the district court’s error substantially affected the fairness
of the judicial proceedings. Accordingly, we vacate his sentence
and remand for resentencing.
Because we remand for resentencing, we need not reach
Sanchez’s assertion that the district court erred under United
States v. Booker, 543 U.S. 220 (2005), by sentencing him pursuant
to a mandatory application of the Sentencing Guidelines. See
United States v. Villegas, 404 F.3d 355, 365 (5th Cir. 2005)
(“Because we have determined that ... misapplication of the
Guidelines requires a remand in this case, we need not consider
[Defendant-Appellant’s] argument that his Sixth Amendment rights
were violated.”).
Sanchez’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Sanchez contends that case was incorrectly
decided and that a majority of the Supreme Court would overrule it
in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we
have repeatedly rejected such contentions on the basis that
Almendarez-Torres remains binding. See, e.g., Garza-Lopez, 410
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F.3d at 276. Sanchez concedes his challenge is foreclosed in the
light of Almendarez-Torres and circuit precedent; he raises it to
preserve it for further review.
In the light of the foregoing rulings, we need not reach the
Government’s contention that Sanchez’s plea agreement bars
consideration of the Booker and Apprendi issues.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
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