United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 17, 2006
Charles R. Fulbruge III
Clerk
No. 04-40977
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO ANTONIO RODRIGUEZ-ORELLANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-336-1
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Ramiro Antonio Rodriguez-Orellana appeals the sentence imposed
following his guilty-plea conviction of illegally reentering the
United States after deportation, in violation of 8 U.S.C. § 1326.
He argues that his sentence should be vacated and remanded because
the district court sentenced him under a mandatory Sentencing
Guideline scheme held unconstitutional in United States v. Booker,
125 S. Ct. 738 (2005). The Government argues that the error was
harmless.
*
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this opinion should not be published and is not precedent except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. 04-40977
-2-
Under the harmless error standard, the Government bears the
burden of proving beyond a reasonable doubt that the district court
would not have sentenced Rodriguez-Orellana differently under an
advisory guideline sentencing regime. See United States v.
Walters, 418 F.3d 461, 464 (5th Cir. 2005). The record fails to
provide clear commentary from the district court regarding whether
it would have imposed the same sentence in a post-Booker
environment. See id. The Government thus has not carried its
burden of showing harmless error. See id. We therefore remand
Rodriguez-Orellana’s case for resentencing.
Rodriguez-Orellana challenges the constitutionality of
8 U.S.C. § 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rodriguez-Orellana 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.
Mancia-Perez, 331 F.3d 464, 470 (5th Cir. 2003). Rodriguez-
Orellana 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.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.