United States v. Vega-Perez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 23, 2006

Charles R. Fulbruge III
Clerk
No. 04-11233
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN VEGA-PEREZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-192-ALL-H
--------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Martin Vega-Perez (Vega) appeals his sentence following his

guilty plea conviction for illegal reentry following deportation.

He argues that his sentence is unconstitutional in light of

United States v. Booker, 543 U.S. 220 (2005), because it was

increased based upon facts which were not alleged in his

indictment, proven to a jury beyond a reasonable doubt, or

admitted by him at his guilty plea. He further contends that his

sentence is unconstitutional because he was sentenced pursuant to

*
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this opinion should not be published and is not precedent except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. 04-11233
-2-

the mandatory federal sentencing guideline system declared

unconstitutional in Booker.

In the instant case, there was no Booker error or Sixth

Amendment violation because the only enhancement to Vega’s

sentence was due to his prior felony conviction. See Booker, 543

U.S. at 244. Nevertheless, the district court did err in

sentencing Vega pursuant to a mandatory guidelines system. See

United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). The

Government concedes that Vega preserved this error for appeal.

The Government, however, has not shown beyond a reasonable doubt

that the error was harmless. See Walters, 418 F.3d at 463;

United States v. Woods, 440 F.3d 255, 258-261 (5th Cir. 2006).

Accordingly, Vega’s sentence is vacated, and this case is

remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.