United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 22, 2006
Charles R. Fulbruge III
Clerk
No. 05-40177
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIANO DEL CID-MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1780-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Mariano Del Cid-Mendez appeals his conviction and sentence
for illegal reentry. Del Cid challenges the constitutionality of
8 U.S.C. § 1326(b)(1), (2) and, additionally, the district
court’s application of the mandatory Sentencing Guidelines.
Del Cid’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Del Cid 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this opinion should not be published and is not precedent except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. 05-40177
-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). Del Cid 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.
Del Cid also contends that 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). The Government concedes that Del Cid has
preserved this issue on appeal. 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 of establishing beyond a
reasonable doubt that the district court’s error was harmless.
See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
Thus, Del Cid’s sentence is VACATED, and the case is REMANDED for
further proceedings. See id. at 466.