United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 28, 2006
Charles R. Fulbruge III
Clerk
No. 04-41151
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADAN VASQUEZ-MONJARAZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-304-ALL
--------------------
Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Adan Vasquez-Monjaraz pleaded guilty to attempted reentry
after deportation in violation of 8 U.S.C. § 1326 and was sentenced
to 33 months of imprisonment and two years of supervised release.
Vasquez-Monjaraz’s constitutional challenge to § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Vasquez-Monjaraz contends that Almendarez-Torres
was incorrectly decided and that a majority of the Supreme Court
*
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opinion should not be published and is not precedent except under the limited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.
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). Vasquez-Monjaraz 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. Accordingly, Vasquez-Monjaraz’s conviction is affirmed.
Vasquez-Monjaraz contends that his sentence must be vacated
because he was sentenced pursuant to mandatory Sentencing
Guidelines that were held unconstitutional in United States v.
Booker, 125 S. Ct. 738 (2005). He asserts that the error is
structural and is insusceptible of harmless error analysis.
Contrary to Vasquez-Monjaraz’s contention, we have previously
rejected this specific argument. See United States v. Walters, 418
F.3d 461, 463 (5th Cir. 2005).
In the alternative, Vasquez-Monjaraz contends that the
Government cannot show that the Fanfan error was harmless. We
review Vasquez-Monjaraz’s preserved challenge to his sentence for
harmless error under FED. R. CRIM. P. 52(a). Walters, 418 F.3d at
463.
Vasquez-Monjaraz was sentenced at the low end of the guideline
range. The record provides no clear indication, and the Government
2
has not shown, that the “district court would have imposed the same
sentence” under an advisory guidelines system, and so the error
cannot be considered harmless. See United States v. Woods, ___
F.3d ___, No. 04-11058, 2006 WL 163475 at * 6 (5th Cir. Jan. 24,
2006). Accordingly, Vasquez-Monjaraz’s sentence is vacated, and
his case is remanded for further proceedings consistent with this
opinion.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.
3