United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 16, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41083
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO NAVARRETE-MENDOZA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-533-1
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Alfonso Navarrete-Mendoza (Navarrete) appeals his sentence
following his guilty plea conviction for illegal reentry.
Navarrete 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).
Navarrete’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
*
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this opinion should not be published and is not precedent except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. 04-41083
-2-
Although Navarrete 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). Navarrete 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.
Navarrete also argues that the district court reversibly erred
under United States v. Booker, 125 S. Ct. 738 (2005), by sentencing
him pursuant to a mandatory application of the federal Sentencing
Guidelines. The Government concedes that Navarrete 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, Navarrete’s sentence is VACATED, and this case is
REMANDED for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.