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. 04-41545
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO RAMOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-1028-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rodolfo Ramos appeals his sentence upon his guilty–plea
conviction for violating 8 U.S.C. § 1326.
Ramos first asserts the district court’s belief at the time of
sentencing that the United States Sentencing Guidelines were
mandatory, rather than advisory, requires reversal under United
States v. Booker, 543 U.S. 220 (2005). Because Ramos preserved the
Fanfan error in the district court, we review for harmless error.
*
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this opinion should not be published and is not precedent except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.
1
See 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 beyond a reasonable doubt 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). Therefore, Ramos’ sentence is vacated; the case
remanded to district court for resentencing.
Ramos also maintains 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 Ramos contends Almendarez-Torres 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 United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005). Ramos concedes Almendarez-Torres and circuit precedent
foreclose this claim; he raises it to preserve it for further
review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
2