United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-40016
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO DELGADO-CASTILLO, also known as Juan Ruiz-Castillo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1520-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Leonardo Delgado-Castillo appeals his conviction and
sentence for unlawful presence in the United States after
deportation following an aggravated felony conviction. He raises
three issues in this appeal.
First, Delgado-Castillo argues that his sentence is
unconstitutional under United States v. Booker, 543 U.S. 220
(2005), because it was imposed pursuant to a mandatory
application of the United States Sentencing Guidelines. He thus
*
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this opinion should not be published and is not precedent except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. 05-40016
-2-
alleges a “Fanfan” error. See United States v. Walters, 418 F.3d
461, 463 (5th Cir. 2005). Fanfan error is not a structural
error. Id. However, the Government concedes that the Fanfan
error was preserved, so we review for harmless error. See id.
A sentence at the top of the guideline range alone is
insufficient to establish that the Fanfan error was harmless.
See United States v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006).
The record fails to demonstrate beyond a reasonable doubt that
the district court would have imposed the same sentence under the
post-Booker advisory sentencing regime. See Walters, 418 F.3d at
464. We therefore vacate Delgado-Castillo’s sentence and remand
for resentencing in accordance with Booker. See id. at 466.
Second, Delgado-Castillo argues that his base offense level
was erroneously enhanced eight levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C). He contends that the enhancement was improper
because his state felony conviction for simple possession of
cocaine was a misdemeanor under federal law, not an “aggravated
felony.” Delgado-Castillo acknowledges that this court’s
decisions in United States v. Rivera, 265 F.3d 310, 312-13 (5th
Cir. 2001), and United States v. Hinojosa-Lopez, 130 F.3d 691,
693-94 (5th Cir. 1997), mandate the result reached by the
district court; however, he contends that these holdings are
contrary to the Supreme Court’s decision in Jerome v. United
States, 318 U.S. 101, 104-07 (1943). Having preceded
Hinojosa-Lopez, Jerome is not “an intervening Supreme Court case
No. 05-40016
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explicitly or implicitly overruling that prior precedent.” See
United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999).
Delgado-Castillo has not shown that the district court erred by
classifying his possession conviction as an aggravated felony for
purposes of the eight-level enhancement under § 2L1.2(b)(1)(C).
Third, Delgado-Castillo argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and
(b)(2) are unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). Delgado-Castillo’s constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Delgado-Castillo contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi, 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). Delgado-Castillo 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.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.