United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 04-41573
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO NAPOLEON MARTINEZ-CASARES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(7:04-CR-431-1)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gerardo Napoleon Martinez-Casares appeals his guilty-plea
conviction and sentence for illegal reentry following deportation,
in violation of 8 U.S.C. § 1326. He presents two claims.
First, he contends the district court reversibly erred when it
sentenced him pursuant to the mandatory Sentencing Guidelines held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005)
(Fanfan claim). In this regard, Martinez-Casares’ being sentenced
pursuant to a mandatory system constituted error. See United
*
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this opinion should not be published and is not precedent except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.
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005). Because he preserved his Fanfan
claim in district court by objecting based on Blakely v.
Washington, 542 U.S. 296 (2004), we review for harmless error.
United States v. Rodriguez-Mesa, ___ F.3d ___, No. 04-41757, 2006
WL 633280, at *5-6 (5th Cir. 15 Mar 2006). The Government bears
the burden of proving beyond a reasonable doubt the district court
would not have sentenced Martinez-Casares differently under an
advisory system. See United States v. Walters, 418 F.3d 461, 464
(5th Cir. 2005).
The sentencing transcript gives no indication whether the
court would have imposed the same sentence had the Guidelines been
advisory. Further, contrary to the Government’s claim, that the
sentence may be reasonable does not demonstrate the district court
would have imposed the same sentence had it not been bound by the
Guidelines. See id. at 464-65. Moreover, the court’s granting a
downward departure alone does not prove beyond a reasonable doubt
the error did not affect Martinez-Casares’ sentence. See United
States v. Garza, 429 F.3d 165, 171 (5th Cir. 2005), cert. denied,
126 S. Ct. 1444 (2006). Therefore, we vacate Martinez-Casares’
sentence and remand for resentencing.
Martinez-Casares also challenges the constitutionality of
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
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offense that must be found by a jury in the light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). This challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Martinez-Casares contends Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would
overrule it in the light of Apprendi, we have repeatedly rejected
such claims 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). Martinez-Casares concedes
this claim is foreclosed by Almendarez-Torres and circuit
precedent; he raises it only to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
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