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. 05-40022
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAGDALENO REYES-BAUTISTA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1494-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Magdaleno Reyes-Bautista appeals his guilty-plea conviction
and sentence for being found in the United States, without
permission, following deportation. See 8 U.S.C. § 1326(a), (b).
Reyes-Bautista argues that the sentencing provisions in 8 U.S.C.
§ 1326(b) are unconstitutional. Reyes-Bautista’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Reyes-Bautista contends that
Almendarez-Torres was incorrectly decided and that a majority of
*
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this opinion should not be published and is not precedent except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. 05-40022
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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). Reyes-
Bautista 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.
Reyes-Bautista next argues that the district court erred by
characterizing, for purposes of U.S.S.G. § 2L1.2(b)(1)(C), his
state felony conviction for possession of a controlled substance
as an “aggravated felony.” Reyes-Bautista’s argument is
foreclosed. See United States v. Hinojosa-Lopez, 130 F.3d 691,
694 (5th Cir. 1997). The Supreme Court’s decision in Jerome v.
United States, 318 U.S. 101 (1943), does not affect this
precedent.
Finally, Reyes-Bautista argues that the district court
committed reversible error when it sentenced him pursuant to the
mandatory United States Sentencing Guidelines scheme held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005).
By sentencing Reyes-Bautista under a mandatory guidelines regime,
the district court committed what this court refers to as Fanfan
error. See United States v. Walters, 418 F.3d 461, 463 (5th Cir.
2005). The Government concedes that Reyes-Bautista preserved his
Fanfan claim for appellate review. The Government has not
No. 05-40022
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sustained its burden of demonstrating that the district court’s
Fanfan error was harmless. See id. at 463-64. We therefore we
VACATE Reyes-Bautista’s sentence and REMAND the case for
resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.