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. 05-40078
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ROMAN-NOYOLA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-1348-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Roman-Noyola appeals the sentence imposed upon his
guilty-plea conviction for illegal reentry. See 8 U.S.C. § 1326.
Roman claims the district court reversibly erred under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), by
sentencing him pursuant to a mandatory application of the
Sentencing Guidelines. There was no Booker error (Sixth-Amendment
violation) because the only enhancement to Roman’s sentence was for
*
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this opinion should not be published and is not precedent except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.
his prior conviction. See id., 125 S. Ct. at 756, 769. Instead,
the district court committed Fanfan error by sentencing Roman under
a mandatory guidelines scheme. See United States v. Walters, 418
F.3d 461, 463-64 (5th Cir. 2005).
The Government concedes Roman preserved his Fanfan claim. As
such, we review for harmless error. See id. at 464. This court
has rejected that Fanfan error is structural. See id. at 463.
The record does not show the district court would have imposed
the same sentence had the guidelines been advisory rather than
mandatory. The Government has not satisfied its burden of showing
the Fanfan error was harmless beyond a reasonable doubt. See id.
at 463-64. Accordingly, we vacate Roman’s sentence and remand for
resentencing in accordance with Booker.
Roman next asserts that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional
on their face, and as applied in his case, in the light of Apprendi
v. New Jersey, 530 U.S. 466 (2000). Roman’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Roman contends that case was
incorrectly decided and that a majority of the Supreme Court would
overrule it in the light of Apprendi, we have repeatedly rejected
such contentions on the basis that Almendarez-Torres remains
binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th
2
Cir.), cert. denied, 126 S. Ct. 298 (2005). Roman concedes this
claim is foreclosed in the light of Almendarez-Torres and circuit
precedent; he raises it to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
3