United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 26, 2006
Charles R. Fulbruge III
Clerk
No. 05-10010
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO LOPEZ-MORENO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(3:04-CR-249-ALL)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Roberto Lopez-Moreno (Lopez) appeals his
guilty-plea conviction and sentence for illegal reentry into the
United States following removal subsequent to a conviction for an
aggravated felony. His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Lopez 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
*
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this opinion should not be published and is not precedent except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.
(2000), and its progeny, we have repeatedly rejected such arguments
because Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005).
Lopez asserts that the district court committed reversible
error under United States v. Booker, 543 U.S. 220 (2005), by
sentencing him pursuant to a mandatory application of the
Sentencing Guidelines. The government maintains that the error was
harmless. As the government concedes, Lopez preserved this error
for review by raising an objection in the district court based on
Blakely v. Washington, 542 U.S. 296 (2004), and arguing that the
Guidelines were unconstitutional as a whole. See United States v.
Walters, 418 F.3d 461, 462-63 (5th Cir. 2005). The question that
this places before us is “whether the government has met its burden
to show harmless error beyond a reasonable doubt.” Id. at 464; but
cf. United States v. Mendoza-Blanco, 440 F.3d 264, 265 n.7 (5th
Cir. 2006) (following Walters, but questioning standard of review).
At sentencing, the district court narrowly declined to make an
upward departure and sentenced Lopez at the top of the guidelines
range. The court did not, however, give any indication of the
sentence it would impose if the Guidelines were held
unconstitutional or advisory. Under these circumstances, the
government has not met its burden of showing that the error was
harmless. See United States v. Woods, 440 F.3d 255, 257-59 (5th
2
Cir. 2006). We therefore vacate Lopez’s sentence and remand to the
district court for resentencing.
Lopez further contends that the application of the remedial
opinion in Booker to his case would violate his rights under the
Due Process Clause and the Ex Post Facto Clause were he to be
resentenced to a sentence greater than the maximum allowable
sentence as set forth in the merits opinion in Booker. This
argument is without merit. See United States v. Scroggins, 411
F.3d 572, 575-76 (5th Cir. 2005).
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.
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