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. 04-41525
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ARMANDO ZUNIGA-ALCALA, true name Armando
Zuniga-Alcala, also known as Jesus Armando Zuniga, also
known as Jesus Ramon Garcia, also known as Armando Garcia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-942-ALL
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Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Jesus Armando Zuniga-Alcala (Zuniga) appeals his conviction
and the 30-month sentence he received after he pleaded guilty to
illegal reentry in violation of 8 U.S.C. § 1326. Zuniga argues
that 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
*
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opinion should not be published and is not precedent except under the limited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.
Guidelines.
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. The Government concedes
that Zuniga preserved his Fanfan claim for appeal. The Government
falls short of meeting its burden of proving that the district
court’s sentence under Guidelines it deemed mandatory was harmless
beyond a reasonable doubt because the Government fails to cite to
any record evidence showing that the district court would have
imposed the same sentence under an advisory guidelines scheme. See
United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005); United
States v. Garza, 429 F.3d 165, 171 (5th Cir. 2005) (Booker error).
We therefore vacate the sentence and remand the case for
resentencing in accordance with Booker.
Zuniga also argues that the enhancement provisions set forth
in 8 U.S.C. § 1326(b) are unconstitutional. As he concedes, this
argument 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). The judgment
of conviction is affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
2