United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 7, 2006
Charles R. Fulbruge III
Clerk
No. 04-51153
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE CERVANTES-BLANCO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-472-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jorge Cervantes-Blanco appeals his guilty-plea conviction
and sentence for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He 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).
*
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this opinion should not be published and is not precedent except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. 04-51153
-2-
Cervantes-Blanco’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Cervantes-Blanco 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). Cervantes-Blanco properly concedes that his
argument is foreclosed in light of Almendarez-Torres and circuit
precedent, but raises it here to preserve it for further review.
Cervantes-Blanco also contends that the district court
committed reversible error when it sentenced him pursuant to the
mandatory United States Sentencing Guidelines held
unconstitutional in United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005). Further, Cervantes-Blanco argues that the
district court erred when it enhanced his sentence based on a
finding that his state conviction for attempted second degree
kidnaping was a crime of violence.
The district court erred when it sentenced Cervantes-Blanco
pursuant to a mandatory guidelines system. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,
126 S. Ct. 267 (2005). This error was more like that experienced
by the other respondent in Booker, Ducan Fanfan. See United
States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert.
No. 04-51153
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denied, 126 S. Ct. 464 (2005). Because Cervantes-Blanco
preserved his Fanfan challenge in the district court by raising
an objection based on Blakely v. Washington, 542 U.S. 296 (2004),
we review for harmless error. United States v. Walters, 418 F.3d
461, 463 (5th Cir. 2005). The Government bears the burden of
proving beyond a reasonable doubt that the district court would
not have sentenced Cervantes-Blanco differently under an advisory
guidelines system. See id. at 464.1
The Government concedes that the district court erred when
it sentenced Cervantes-Blanco pursuant to a mandatory guidelines
system and that the error was not harmless. A review of the
sentencing transcript supports the Government’s concession. We
therefore vacate Cervantes-Blanco’s sentence and remand the case
for resentencing. Because we remand based on the Fanfan error,
we need not address Cervantes-Blanco’s other claimed sentencing
error. See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th
Cir. 2005).
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
1
Although we must follow the panel’s decision in Walters, United
States v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999), we note that the standard
of review it applied - requiring the Government to show that preserved Fanfan
error was harmless beyond a reasonable doubt - was not contested in the case
and appears to be incorrect because Fanfan error is nonconstitutional error,
see United States v. Hughes, 410 F.3d 540, 553 (4th Cir. 2005) (pointing out
that Fanfan error, unlike Booker error, is nonconstitutional). Rather,
“harmless error” in Fanfan cases is defined by the standard announced in
Kotteakos v. United States, 328 U.S. 750, 776 (1946). See United States v.
Hernandez-Guevara, 162 F.3d 863, 876 (5th Cir. 1998) (applying Kotteakos to
preserved nonconstitutional error). But the issue is irrelevant here because
the Government cannot meet either burden.