United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 9, 2006
Charles R. Fulbruge III
No. 04-51237 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO ESCARCEGA-MEDINA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 7:04-CR-50-ALL
Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Following a bench trial, Antonio Escarcega-Medina was
convicted of illegal reentry after deportation, in violation of 8
U.S.C. § 1326(a) (2000). On appeal, Escarcega challenges his
conviction on the ground that he is a citizen of the United States
pursuant to 8 U.S.C. § 1401. After carefully considering
Escarcega’s claim in light of the briefs and pertinent portions of
the record, we find that the evidence was sufficient to support
Escarcega’s conviction. However, we vacate his sentence because it
*
Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.
violated the Sixth Amendment.
To establish a violation of section 1326, the Government was
required to prove that Escarcega was (1) an alien; (2) previously
excluded, deported, or removed; and (3) found in the United States
without the permission of the Attorney General or the Secretary of
the Department of Homeland Security. 8 U.S.C. § 1326. Escarcega
challenges only the first element.
“[T]he test for evidential sufficiency is whether any
substantial evidence supports the finding of guilty and whether the
evidence is sufficient to justify the trial judge, as trier of the
facts, in concluding beyond a reasonable doubt that the defendant
was guilty.” United States v. Davis, 993 F.2d 62, 66 (5th Cir.
1993). The Government presented evidence that Escarcega was born
in Mexico, that he had previously been issued an immigrant visa,
and that he had been deported on multiple occasions. The
Government thus provided the district court with sufficient
evidence that Escarcega was an alien in violation of section 1326.
The district court concluded that the evidence of citizenship
was insufficient to raise a reasonable doubt. It implicitly found
incredible Escarcega’s evidence that he had derivative citizenship
by virtue of his mother’s citizenship. Such was the court’s
prerogative as factfinder. Escarcega’s conviction is therefore
AFFIRMED.
Escarcega also brings a Sixth Amendment challenge to his
2
sentence under the then-mandatory Guidelines. Escarcega’s Blakely
objection before the district court properly preserved this issue
for appeal. The Government concedes that it cannot meet its burden
of proving “beyond a reasonable doubt that the district court would
not have sentenced [the defendant] differently had it acted under
an advisory Guidelines regime.” United States v. Garza, 429 F.3d
165, 170 (5th Cir. 2005), cert. denied, 126 S. Ct. 1444 (2006).
Accordingly, Escarcega’s sentence is VACATED and his case is
REMANDED for resentencing consistent with United States v. Booker,
543 U.S. 220 (2005).1
CONVICTION AFFIRMED. SENTENCE VACATED AND REMANDED.
1
The judgment of the district court incorrectly states
that Escarcega was convicted following a jury, rather than a
bench, trial. On remand, the district court may correct this
clerical error. See United States v. Powell, 354 F.3d 362, 371
(5th Cir. 2003).
3