United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41567
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ALFREDO ENRIQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1167-ALL
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Juan Alfredo Enriquez appeals his conviction and sentence
for illegal reentry. Enriquez challenges the constitutionality
of 8 U.S.C. § 1326(b)(1) and (2) and, additionally, the district
court’s application of the mandatory Sentencing Guidelines.
Enriquez’s constitutional challenge to § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Enriquez contends that Almendarez-Torres
was incorrectly decided and that a majority of the Supreme Court
*
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this opinion should not be published and is not precedent except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. 04-41567
-2-
would overrule Almendarez-Torres 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). Enriquez 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.
Enriquez also contends that the district court erred in
sentencing him pursuant to the mandatory Sentencing Guidelines
regime held unconstitutional in United States v. Booker, 543 U.S.
220, 125 S. Ct. 738, 764-65 (2005). The sentencing transcript is
devoid of evidence that the district court would have imposed the
same sentence under an advisory regime, and, therefore, the
Government has not borne its burden of establishing beyond a
reasonable doubt that the district court’s error was harmless.
See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
Thus, Enriquez’s sentence is vacated and the case is remanded for
further proceedings. See id. at 466.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.