United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-40076
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS ZUNIGA-VIDALES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(7:04-CR-564-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Luis Zuniga-Vidales appeals his conviction and sentence
for illegal reentry. Zuniga challenges the constitutionality of 8
U.S.C. § 1326(b)(1), (2) (imposition of criminal penalties for
illegal reentery by aliens who have been removed for conviction of:
three or more misdemeanors involving drugs or crimes against the
person; a felony; or an aggravated felony) and the district court’s
application of the mandatory Sentencing Guidelines. Neither issue
*
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this opinion should not be published and is not precedent except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.
is precluded from being raised on appeal by the waiver contained in
his plea agreement.
As Zuniga concedes, his constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Zuniga 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). Zuniga raises this issue to preserve it for further
review.
Zuniga also contends the district court erred in sentencing
him pursuant to the mandatory Guidelines regime held
unconstitutional in United States v. Booker, 125 S. Ct. 738, 764-65
(2005). Because Zuniga objected in district court, “the only
question is whether the government has met its burden to show
harmless error beyond a reasonable doubt in the imposition of
[Zuniga’s] sentence”. See United States v. Walters, 418 F.3d 461,
464 (5th Cir. 2005). The sentencing transcript is devoid of
evidence that the district court would have imposed the same
sentence under an advisory regime, and, therefore, the Government
has not borne its burden. Id.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED
2