United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 19, 2006
Charles R. Fulbruge III
Clerk
No. 04-40913
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO MORA-MARTINEZ, also known as Antonio Martinez-Mora,
also known as Jose Ruiz-Garcia, also known as Alandro Mendez,
also known a Ruperto Ontiveros,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-93-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Antonio Mora-Martinez (A.K.A. “Ruiz”) appeals his 84-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).
Ruiz argues for the first time on appeal that the district court
erred when it enhanced his base offense level by 16 levels
because his prior Texas conviction for burglary of a habitation
does not qualify as a crime of violence for purposes of U.S.S.G.
*
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this opinion should not be published and is not precedent except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. 04-40913
-2-
§ 2L1.2(b)(1)(A)(ii). The district court did not plainly err
when it determined that burglary of a habitation was a crime of
violence for purposes of assessing a 16-level increase under
§ 2L1.2(b)(1)(A)(ii). See United States v. Garcia-Mendez, 420
F.3d 454, 456-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398
(2006). Ruiz’s argument that Garcia-Mendez is contrary to this
court and the Supreme Court’s precedent is unavailing. See
United States v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999).
Ruiz 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). 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). Because
the sentencing transcript is silent regarding whether the
district court would have imposed the same sentence had the
Guidelines been advisory, the Government has failed to meet its
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.
Ruiz argues that the “felony” and “aggravated felony”
provisions of § 1326(b) are unconstitutional. Ruiz’s
constitutional challenge to § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
No. 04-40913
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Although Ruiz 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). Ruiz 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, we AFFIRM Ruiz’s conviction, VACATE his
sentence, and REMAND the case for resentencing.