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. 04-41578
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO MANUEL ALVARADO-DE HOYOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-507-ALL
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Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
Ricardo Manuel Alvarado-De Hoyos (“Alvarado”) appeals his
conviction and sentence for illegal reentry. Alvarado challenges
the constitutionality of 8 U.S.C. § 1326(b)(1)&(2) and,
additionally, the district court’s application of the mandatory
Sentencing Guidelines.
Alvarado’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Alvarado contends that Almendarez-Torres was incorrectly
*
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this opinion should not be published and is not precedent except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. 04-41578
-2-
decided and that a majority of the Supreme Court 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). Alvarado 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.
Alvarado also contends that the district court erred in
sentencing him pursuant to the mandatory Guidelines regime held
unconstitutional in United States v. Booker, 125 S. Ct. 738,
764-65 (2005). The Government concedes the error and admits that
it cannot carry its burden of establishing beyond a reasonable
doubt that the error was harmless. See United States v. Walters,
418 F.3d 461, 464 (5th Cir. 2005). Thus, Alvarado’s sentence is
VACATED, and the case is REMANDED for further proceedings. See
id. at 466.
AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR FURTHER
PROCEEDINGS.