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. 05-40178
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LUIS HERNANDEZ-FRANCO, also known as Luis Hernandez,
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-69-ALL
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Luis Hernandez-Franco (Hernandez) pleaded guilty to one
count of being unlawfully present in the United States after
having been deported previously. Pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), the district court imposed a 16-level
enhancement on the basis that Hernandez had been deported
following a felony conviction for a crime of violence. Hernandez
objected to the enhancement, asserting that it violated his Sixth
Amendment rights in light of Blakely v. Washington, 542 U.S. 296
*
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this opinion should not be published and is not precedent except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. 05-40178
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(2004). The district court overruled the objection but granted a
downward departure after concluding that Hernandez’s criminal
history category was over-represented. The district court
sentenced Hernandez to 70 months in prison, below the pre-
departure range of 77 to 96 months.
Hernandez appeals, arguing that his sentence should be
vacated in light of United States v. Booker, 125 S. Ct. 738
(2005), which extended Blakely’s Sixth Amendment rule to the
Federal Sentencing Guidelines. He also asserts that the enhanced
penalty provisions of 8 U.S.C. § 1326(b) are unconstitutional.
With respect to Hernandez’s Booker argument, there was no
Sixth Amendment violation because the only enhancement of his
sentence was based on a prior conviction. See Booker, 125 S. Ct.
at 756. Nevertheless, the application of the Guidelines as
mandatory was error, which we have termed “Fanfan” error. See
United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005)
(discussing the distinction between the two types of error
addressed in Booker). This court reviews a preserved “Fanfan”
error for harmless error. See id. We reject Hernandez’s
argument that such error is structural and not amenable to
harmless error analysis. See id.
Under the harmless error standard, “[t]he government must
bear the burden of demonstrating that the error was harmless by
demonstrating beyond a reasonable doubt that the federal
constitutional error of which a defendant complains did not
No. 05-40178
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contribute to the sentence that he received.” United States v.
Akpan, 407 F.3d 360, 377 (5th Cir. 2005); see also Walters, 418
F.3d at 463. This burden has been described as “arduous,”
requiring the Government to show “beyond a reasonable doubt that
the district court would have imposed the same sentence under an
advisory scheme.” United States v. Pineiro, 410 F.3d 282, 285,
287 (5th Cir. 2005). We decline the Government’s invitation to
apply a different standard. See Walters, 418 F.3d at 464.
In seeking to satisfy its burden, the Government first
points to the district court’s downward departure. However,
although a court has “virtually complete” discretion in deciding
the extent of a departure, see United States v. Alvarez, 51 F.3d
36, 41 (5th Cir. 1995), the exercise of that discretion does not
necessarily mean that the mandatory nature of the Guidelines had
no effect on the sentencing decision. “[E]ven a discretionary
departure decision is informed by the Guidelines and thus sheds
little light on what a sentencing judge would have done knowing
that the guidelines were advisory.” United States v. Garza, 429
F.3d 165, 171 (5th Cir. 2005) (internal quotation marks and
citation omitted). See also United States v. Waskom, 179 F.3d
303, 312 (5th Cir. 1999) (guidelines calculation error was not
harmless even though district court departed below the corrected
guidelines range, as the extent of the departure could have been
affected by the error). Accordingly, the grant of a downward
No. 05-40178
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departure is insufficient, standing alone, to satisfy the
Government’s burden of demonstrating harmless error.
We also reject the Government’s argument that any error was
harmless because the sentence was reasonable under Booker.
Reasonableness is not the standard we apply in the context of
“Fanfan” error, and it tells us nothing about what the district
court would have done had it been operating under an advisory
sentencing regime. See Walters, 418 F.3d at 464-65 (giving no
weight to Government’s contention that error was harmless because
the sentence was reasonable). As for the Government’s contention
that the district court expressed no dissatisfaction with the
Guidelines, the district court’s silence regarding its views on
the Guidelines is plainly insufficient to satisfy the
Government’s arduous burden of showing harmless error. See
Pineiro, 410 F.3d at 286.
In sum, there is nothing in the record that demonstrates
beyond a reasonable doubt that the district court would have
imposed the same sentence if the Guidelines had been advisory
rather than mandatory. Accordingly, we must vacate Hernandez’s
sentence and remand this matter for resentencing.
Hernandez’s constitutional challenge to § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Hernandez 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
No. 05-40178
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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). Hernandez 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.
For the foregoing reasons, we AFFIRM Hernandez’s conviction.
We VACATE his sentence and REMAND this matter to the district
court for resentencing.