United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-40149
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GOMEZ-MORALES, also known as Elias Ramirez-Morales,
also known as Juan Gonzalez-Morales,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-441-ALL
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Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Juan Gomez-Morales appeals his 77-month sentence for being
an alien unlawfully found in the United States after deportation,
in violation of 8 U.S.C. § 1326(a) and (b). Gomez-Morales argues
that his sentence must be vacated and his case remanded for
resentencing because the district court committed reversible
error by sentencing him pursuant to a mandatory Sentencing
Guidelines regime in light of United States v. Booker, 543 U.S.
220 (2005). He preserved this contention in the district court.
*
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this opinion should not be published and is not precedent except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.
No. 05-40149
-2-
The district court’s sentence pursuant to a mandatory
Guidelines scheme constitutes Fanfan error. See United States v.
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). The Government
thus bears the burden of proving beyond a reasonable doubt that
the district court would have imposed the same sentence had the
Guidelines been advisory only. See id. at 464. If the
Government cannot show that the error was harmless, we ordinarily
will vacate and remand for resentencing. Id. at 463.
The sentencing transcript is silent with regard to whether
the district court would have imposed the same sentence had the
Guidelines been advisory and the Government so concedes. The
Government cannot meet its burden. See id. at 464-66. Because
the Fanfan error requires remand for resentencing, we need not
address Gomez-Morales’s remaining challenge to his sentence. See
United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
Accordingly, we vacate Gomez-Morales’s sentence and remand the
case for resentencing.
Gomez-Morales also challenges the constitutionality of
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Gomez-Morales’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Gomez-Morales contends that
Almendarez-Torres was incorrectly decided and that a majority of
No. 05-40149
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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).
Gomez-Morales properly concedes that his argument is foreclosed
in light of Almendarez-Torres and circuit precedent, but he
raises it here to preserve it for further review. Accordingly,
Gomez-Morales’s conviction is affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.