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this opinion should not be published and is not precedent except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.