United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 22, 2006
Charles R. Fulbruge III
Clerk
No. 05-40004
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL MUNOZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-1438-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Daniel Munoz pleaded guilty to possession with intent to
distribute in excess of 100 kilograms of marijuana, in violation of
21 U.S.C. §§ 841 and 851. He was sentenced to 262 months
imprisonment, eight years supervised release, and a $100 special
assessment.
Munoz contends the district court committed reversible error
when it sentenced him under the mandatory 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this opinion should not be published and is not precedent except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.
1
Guidelines held unconstitutional in United States v. Booker, 543
U.S. 220 (2005). Application of the guidelines as mandatory is
deemed Fanfan error. See United States v. Martinez-Lugo, 411 F.3d
597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005). When
such error occurs, the Government has the burden of proving the
error harmless beyond a reasonable doubt. United States v.
Walters, 418 F.3d 461, 464 (5th Cir. 2005); see United States v.
Garza, 429 F.3d 165, 170 (5th Cir. 2005) (calling the Government’s
burden “arduous” and stating this court “will ordinarily vacate the
sentence and remand” where a defendant has preserved error)
(internal citations omitted). As the Government implicitly
concedes through its application of the harmless error standard,
Munoz preserved his Fanfan claim in district court. See Walters,
418 F.3d at 463.
Munoz maintains he is entitled to resentencing because
application of the Sentencing Guidelines as mandatory constituted
structural error. As he concedes, however, this issue is
foreclosed. See id. Munoz also contends the record does not
disclose that the district court’s error was harmless. As the
Government concedes, “the record does not indicate with
satisfactory clarity what sentence the judge would have imposed had
he believed the guidelines to have been advisory instead of
mandatory”. This error is not harmless; thus, we vacate the
sentence and remand for resentencing in accordance with Booker.
2
Munoz asserts for the first time on appeal that the district
court erred in ordering him to cooperate in the collection of a DNA
sample as a condition of supervised release. This claim is
dismissed for lack of jurisdiction because it is not ripe for
review. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02
(5th Cir. 2005), petition for cert. filed, No. 05-8662 (9 Jan.
2006). Munoz concedes his contention is foreclosed in the light of
Riascos-Cuenu; he raises it to preserve it for further review.
Munoz also asserts for the first time on appeal that § 841 is
facially unconstitutional because the penalties based on drug type
and quantity set forth in § 841(b), which have been held to
constitute sentencing factors rather than elements of the offense,
conflict with Apprendi v. New Jersey, 530 U.S. 466 (2000), and
cannot be severed from the substantive portions of the statute.
Munoz concedes this contention is foreclosed by United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532
U.S. 1045 (2001). He raises it to preserve it for further review.
Finally, Munoz challenges for the first time on appeal the
constitutionality of the treatment by §§ 841 and 851 of certain
prior drug convictions as sentencing factors rather than elements
of the offense that must be found by a jury in the light of
Apprendi. As Munoz concedes, this contention is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Munoz contends Almendarez-Torres was incorrectly decided and a
3
majority of the current Court would overrule it in the light of
Apprendi. We have repeatedly rejected such contentions because
Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005). He raises the issue to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING;
APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION
4