United States v. Maldonado-Cruz

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. 05-40093
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORIO VILLEGAS-CRUZ, also known as
Santiago Sosa-Ramirez,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-390-ALL
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Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

Gregorio Villegas-Cruz (Villegas) appeals his sentence

following his guilty plea conviction for illegal reentry. He

argues that the “felony” and “aggravated felony” provisions of

8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Villegas’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998). Although Villegas

contends that Almendarez-Torres was incorrectly decided and that

*
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this opinion should not be published and is not precedent except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. 05-40093
-2-

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). Villegas 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.

Villegas also argues that the district court reversibly

erred under United States v. Booker, 543 U.S. 220 (2005), by

sentencing him pursuant to a mandatory application of the

Sentencing Guidelines. The Government concedes that Villegas has

preserved this issue for appeal. The Government, however, has

not shown beyond a reasonable doubt that the error was harmless.

See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.

2005). Accordingly, Villegas’s sentence is vacated, and this

case is remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.