United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-40060
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ROCHA, also known as Javier Anselmo Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1204-ALL
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Juan Rocha, also known as Javier Anselmo Hernandez, appeals
his guilty-plea conviction and sentence for illegal reentry
following deportation in violation of 8 U.S.C. § 1326. He
contends that the district court committed reversible error when
it sentenced him pursuant to the mandatory United States
Sentencing Guidelines system held unconstitutional in United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (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this opinion should not be published and is not precedent except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.
No. 05-40060
-2-
The district court erred when it sentenced Rocha 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.
denied, 126 S. Ct. 464 (2005). Because Rocha 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 Rocha differently under an advisory Guidelines system.
See id. at 464.
The mere fact that the district court sentenced Rocha to the
middle of the applicable Guidelines range, standing alone, fails
to satisfy the Government’s burden of proving harmless error
beyond a reasonable doubt. See United States v. Garza, 429 F.3d
165, 170-71 (5th Cir. 2005) (Booker error). Further, the
sentencing transcript is silent with regard to whether the
district court would have applied the same sentence had the
Guidelines been advisory rather than mandatory. Therefore, the
Government has failed to carry its burden of showing beyond a
reasonable doubt that the error did not affect Rocha’s sentence.
No. 05-40060
-3-
See id. We therefore vacate Rocha’s sentence and remand the case
for resentencing.
Rocha also 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).
Rocha’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rocha 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). Rocha
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.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.