United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 17, 2006
Charles R. Fulbruge III
Clerk
No. 04-41089
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS PIMENTEL-HILLAN, also known as Luis Pimental-Hillan, also
known as Luis Pimental-Valencia,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-166-1)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Luis Pimentel-Hillan appeals his guilty-plea conviction and
sentence for illegal reentry, in violation of 8 U.S.C. § 1326.
Pimentel asserts his sentence is illegal under United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it was imposed
pursuant to a mandatory application of the federal Sentencing
Guidelines.
*
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this opinion should not be published and is not precedent except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.
The erroneous application of the Guidelines as mandatory is
technically a Fanfan error. United States v. Martinez-Lugo, 411
F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005);
see Booker, 125 S. Ct. at 750, 768-69. Such error is not
structural. Martinez-Lugo, 411 F.3d at 601.
The Government concedes Pimentel preserved his Fanfan claim
for appeal. The Government fails to meet its burden of proving the
sentence was harmless beyond a reasonable doubt because it fails to
cite to any record evidence showing the district court would have
imposed the same sentence under an advisory guidelines scheme. See
United States v. Garza, 429 F.3d 165, 171 (5th Cir. 2005), petition
for cert. filed,(No. 05-8843) (23 Jan. 2006); United States v.
Walters, 418 F.3d 461, 464 (5th Cir. 2005). We therefore vacate
Pimentel’s sentence and remand the case for resentencing in
accordance with Booker.
Pimentel also maintains the enhancement provisions in
§ 1326(b) are unconstitutional. As he concedes, this contention is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), which this court must follow “unless and until the Supreme
Court itself determines to overrule it”. United States v.
Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.) (quotation marks
omitted), cert. denied, 126 S. Ct. 253 (2005). He raises the issue
to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
2