United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-40005
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS WILFREDO MARTINEZ-ESCALANTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1416-ALL
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Before KING, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Luis Wilfredo Martinez-Escalante (Martinez) appeals his
conviction and the 57-month sentence imposed for his guilty plea
to a charge of illegal reentry to the United States, a violation
of 8 U.S.C. § 1326.
Martinez’s constitutional challenge to § 1326 is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Martinez contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
*
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this opinion should not be published and is not precedent except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. 05-40005
-2-
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). Martinez 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, Martinez’s conviction is affirmed.
Martinez asserts that his sentence must be vacated because
he was sentenced pursuant to mandatory Sentencing Guidelines in
violation of United States v. Booker, 543 U.S. 220 (2005). He
asserts that the error in his case is structural and is
insusceptible to harmless error analysis. Contrary to Martinez’s
contention, we have previously rejected this specific argument.
See United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).
Martinez contends that the Government cannot show that the
error that occurred at his sentencing was harmless. The
Government concedes that Martinez preserved his claim of error.
We review Martinez’s challenge to his sentence for harmless error
under FED. R. CRIM. P. 52(a). See Walters, 418 F.3d at 463.
Nothing in the record demonstrates and the Government has not
shown that the district court would not have imposed a different
sentence under advisory Sentencing Guidelines. See id. at 466.
Accordingly, Martinez’s sentence is vacated, and his case is
remanded for further proceedings consistent with this opinion.
No. 05-40005
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Because resentencing is warranted, there is no need to address
Martinez’s remaining sentencing claims. See United States v.
Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
AFFIRMED IN PART; VACATED IN PART; REMANDED.