United States v. Gonzalez-Vargas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 2, 2006

Charles R. Fulbruge III
Clerk
No. 04-41532
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMON GONZALEZ-LOPEZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-891-ALL
--------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Ramon Gonzales-Lopez pleaded guilty to illegal reentry after

deportation in violation of 8 U.S.C. § 1326 and was sentenced to 57

months of imprisonment and three years of supervised release.

Gonzalez-Lopez’s constitutional challenge to § 1326 is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998). Although Gonzalez-Lopez 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

*
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this opinion should not be published and is not precedent except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. 04-41532
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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). Gonzalez-Lopez properly 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. Accordingly, Gonzalez-Lopez’s conviction is affirmed.

Gonzalez-Lopez contends that his sentence must be vacated

because he was sentenced pursuant to mandatory Sentencing

Guidelines that were held unconstitutional in United States v.

Booker, 125 S. Ct. 738 (2005). He asserts that the error is

structural and is insusceptible of harmless error analysis.

Contrary to Gonzalez-Lopez’s contention, we have previously

rejected this specific argument. See United States v. Walters, 418

F.3d 461, 463 (5th Cir. 2005).

In the alternative, Gonzalez-Lopez contends that the

Government cannot show that the Fanfan error was harmless. We

review Gonzalez-Lopez’s preserved challenge to his sentence for

harmless error under FED. R. CRIM. P. 52(a). Walters, 418 F.3d at

463.

Gonzalez-Lopez was sentenced at the low end of the guideline

range. The record provides no indication, and the Government has

not shown, that the district court would not have sentenced

Gonzalez-Lopez differently under an advisory guidelines system.

See United States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005).
 No. 04-41532
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Accordingly, Gonzalez-Lopez’s sentence is vacated, and his case is

remanded for further proceedings consistent with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR

RESENTENCING.