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. 05-40027
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CONSTANTINO PADRON-BALDERAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-691-1)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Constantino Padron-Balderas (Padron) appeals his guilty-plea
conviction and 60-month sentence for illegal reentry into the
United States following deportation. Padron claims that 8 U.S.C.
§ 1326(b) is unconstitutional because it treats prior felony and
aggravated felony convictions as sentencing factors. Padron’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Padron contends
that Almendarez-Torres was incorrectly decided and that a majority
of the Supreme Court would overrule Almendarez-Torres in the light
*
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this opinion should not be published and is not precedent except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.
of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly
rejected such arguments Almendarez-Torres remains binding. See
United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Padron properly concedes that his
argument is foreclosed in the light of Almendarez-Torres and
circuit precedent; he raises it to preserve it for further review.
Padron also contends that the district court erred in
sentencing him under the mandatory guideline regime held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005)
(Fanfan error). Because Padron preserved the issue in district
court, the Government must show the Fanfan error was harmless
beyond a reasonable doubt. See United States v. Walters, 418 F.3d
461, 463 (5th Cir. 2005). The sentencing transcript is devoid of
evidence that the district court would have imposed the same
sentence under an advisory regime; therefore, the Government has
not borne its burden. Id.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING