United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 8, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41703
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
JOSE CRISTOBAL GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-322-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Cristobal Garcia appeals his sentence for illegal reentry into the United States following
deportation, 8 U.S.C. § 1326(a) and (b). Garcia argues that his sentence must be vacated and his
case remanded for resentencing because the district court committed reversible error by sentencing
him pursuant to a mandatory Sentencing Guidelines regime in light of United States v. Booker, 543
U.S. 220 (2005).
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
The district court’s sentence pursuant to a mandatory guidelines scheme constitutes Fanfan
error. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). The Government thus
bears the burden of proving beyond a reasonable doubt that the district court would have imposed
the same sentence had the Guidelines been advisory only. See id. at 464. If the Government cannot
show that the error was harmless, this court ordinarily will vacate and remand for resentencing. Id.
at 463.
The sentencing transcript is silent with regard to whether the district court would have
imposed the same sentence had the Guidelines been advisory and the Government so concedes. The
Government cannot meet its burden. See id. at 464-66. Accordingly, we vacate Garcia’s sentence
and remand the case for resentencing.
Garcia also challenges the constitutionality of § 1326(b)’s t reatment 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). Garcia’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although
Garcia contends that Almendarez-Torres was 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).
Garcia 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. Accordingly, Garcia’s conviction
is affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.