United States v. Sanchez-Navarro

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this opinion should not be published and is not precedent except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

2
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

3
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