United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 21, 2006
Charles R. Fulbruge III
Clerk
No. 04-41592
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLAN ROBERTO RIVERA-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-1081-ALL)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Allan Roberto Rivera-Garcia appeals his
guilty-plea conviction and sentence for being found in the United
States, without permission, following removal. See 8 U.S.C.
§ 1326(a),(b). Rivera-Garcia asserts that the sentencing
provisions in 8 U.S.C. § 1326(b) are unconstitutional on their face
and as applied in his case. This constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Rivera-Garcia contends that Almendarez-Torres was
*
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this opinion should not be published and is not precedent except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.
incorrectly 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). Rivera-Garcia candidly concedes that his argument is
foreclosed in light of Almendarez-Torres and circuit precedent,
raising it here solely to preserve it for further review. We
affirm Rivera-Garcia’s conviction.
Rivera-Garcia also insists that the district court committed
reversible error when it sentenced him pursuant to the mandatory
scheme United States Sentencing Guidelines (U.S.S.G.) that was
ultimately held unconstitutional in United States v. Booker, 543
U.S. 220 (2005). In sentencing Rivera-Garcia under a mandatory
guidelines regime, the district court committed error that we refer
to as Fanfan error. See United States v. Walters, 418 F.3d 461,
463 (5th Cir. 2005). The government concedes that Rivera-Garcia
preserved his Fanfan claim for appellate review. To prevail, the
government must prove that the Fanfan error in this case was
harmless beyond a reasonable doubt. The government has not
sustained this burden. See id. at 463-64. We are constrained to
vacate Rivera-Garcia’s sentence and remand the case for
resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR
RESENTENCING.
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