United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-40020
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARGARITO PECENO-MONTANEZ, also known as
Margarito Piceno-Montanez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1414-ALL
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Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Margarito Peceno-Montanez (Peceno) appeals the sentence
imposed following his guilty-plea conviction of reentry of a
deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). The
district court sentenced Peceno to 20 months of imprisonment, based
in part on a prior aggravated felony conviction.
Peceno contends that his sentence is illegal under United
States v. Booker, 125 S. Ct. 738 (2005), because it was imposed
*
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opinion should not be published and is not precedent except under the limited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.
pursuant to a mandatory application of the federal sentencing
guidelines. Peceno thus alleges a “Fanfan” error. See United
States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). In the
district court, Peceno objected to his sentence under Blakely v.
Washington, 542 U.S. 296 (2004), and the Government concedes that
the issue is preserved and that it is subject to review for
harmless error.
The Government has not carried its burden of showing beyond a
reasonable doubt that the district court’s error did not affect
Peceno’s sentence. See Walters, 418 F.3d at 464; United States v.
Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005). We therefore vacate
the sentence and remand for resentencing in accordance with Booker.
See Walters, 418 F.3d at 464; Pineiro, 410 F.3d at 285-86.
Peceno also argues that the district court erred when it
characterized his 2003 Texas felony conviction of simple possession
of a controlled substance as an aggravated felony and enhanced his
offense level by eight levels under U.S.S.G. § 2L1.2(b)(1)(C). In
United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.
1997), this court held that a state conviction is an “aggravated
felony” pursuant to U.S.S.G. § 2L1.2(b) if the offense was
punishable under the Controlled Substances Act and a felony under
applicable state law. Hinojosa-Lopez, 130 F.3d at 693. Peceno
concedes that his conviction of simple possession of rock cocaine
was a felony under Texas law. Also, the Controlled Substances Act
criminalizes possession of a controlled substance. 21 U.S.C.
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§ 844(a). Peceno’s prior conviction therefore is an aggravated
felony that warrants the U.S.S.G. § 2L1.2(b)(1)(C) eight-level
offense level increase. Hinojosa-Lopez, 130 F.3d at 694; see also
United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001).
Peceno recognizes this court’s prior decisions, but he argues
that this circuit’s precedent is inconsistent with the Supreme
Court’s analysis set forth in Jerome v. United States, 318 U.S. 101
(1943). Jerome did not involve interpretation of the Guidelines.
Also, Jerome, a 1943 decision, is not “an intervening Supreme Court
case” that explicitly or implicitly overruled Hinojosa-Lopez.
Thus, this court is bound by Hinojosa-Lopez, see Martin v.
Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001), and Jerome does
not affect the binding precedential value of Rivera and
Hinojosa-Lopez.
Peceno also argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional. Peceno’s
constitutional challenge to § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Peceno 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). Peceno properly concedes that his argument is
3
foreclosed in light of Almendarez-Torres and circuit precedent, but
he raises it here to preserve it for further review.
Accordingly, the conviction is AFFIRMED. Peceno’s sentence is
VACATED, and the case is REMANDED for resentencing.
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