United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 22, 2006
Charles R. Fulbruge III
Clerk
No. 04-41553
Summary Calendar
UNTIED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUDOLFO ANGON-ZAMUDIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-449-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rudolfo Angon-Zamudio (“Angon”) pleaded guilty to one count
of illegally re-entering the United States following deportation.
Over Angon’s objection, which was based on Blakely v. Washington,
542 U.S. 296 (2004), the district court enhanced Angon’s sentence
because he had previously been deported following a felony drug
trafficking conviction. Angon was sentenced to a 41-month term
of imprisonment.
*
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this opinion should not be published and is not precedent except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. 04-41553
-2-
Angon, relying on United States v. Booker, 125 S. Ct. 738
(2005), argues that the district court committed reversible error
by imposing sentence pursuant to a mandatory application of the
Sentencing Guidelines. The Government concedes that Angon’s
Blakely objection in the district court preserved the error.
Angon contends that the district court committed “structural
error,” that is not susceptible to harmless error analysis. As
Angon concedes, however, this court has rejected the argument
that a Booker error or the application of the then-mandatory
guidelines is a structural error. United States v. Malveaux,
411 F.3d 558, 561 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194
(2005).
Angon also contends that the district court’s error was not
harmless. It is the Government’s burden to “show that the
sentencing judge would have imposed the same sentence under an
advisory sentencing scheme.” United States v. Pineiro, 410 F.3d
at 286. Our review of the record shows that the Government
correctly concedes that the error was not harmless. Accordingly,
we will vacate Angon’s sentence and remand for resentencing.
Angon challenges the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Angon contends that his conviction
should be reduced to one under 8 U.S.C. § 1326(a)(2) and the
No. 04-41553
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judgment reformed to reflect conviction only under that
provision.
Angon’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Angon contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, 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). Angon
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.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.