United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 17, 2006
Charles R. Fulbruge III
Clerk
No. 04-41522
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN APARICIO-MARTINEZ, true name Juan Silvestre
Aparicio-Martinez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-537-ALL)
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Juan Silvestre Aparicio-Martinez
(Aparicio) appeals his sentence under 8 U.S.C. § 1326(a) and (b)
for illegal re-entry into the United States after having been
deported following conviction for an aggravated felony.
Aparicio maintains that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional. This issue
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Aparicio contends that Almendarez-Torres was
*
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this opinion should not be published and is not precedent except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.
incorrectly decided and that majority of the Supreme Court would
overrule it 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). Aparicio 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. His
conviction is AFFIRMED.
In addition, Aparicio asserts that the district court’s
proceeding during sentencing under the United States Sentencing
Guidelines as mandatory, rather than advisory, requires us to
reverse under United States v. Booker, 543 U.S. 220 (2005). We
apply a harmless error standard of review. United States v. Mares,
402 F.3d 511, 520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). The government has not met its burden of proving that the
district judge would have imposed the same sentence under an
advisory guidelines regime. See United States v. Walters, 418 F.3d
461, 463-65 (5th Cir. 2005). Aparicio’s sentence is thus vacated
and his case remanded to the district court for resentencing in
accordance with United States v. Booker.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.
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