United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 19, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41281
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JAIME GARCIA-SANCHEZ,
true name Gumaro Hernandez-Mar
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(5:04-CR-767)
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jaime Garcia-Sanchez appeals his 30-month sentence for being
an alien who was unlawfully found in the United States after
deportation, in violation of 8 U.S.C. § 1326(a) and (b). Garcia
challenges that constitutionality of § 1326(b)’s treatment of prior
felony and aggravated felony convictions as sentencing factors
rather than elements of the offense that must be alleged in the
indictment and found by a jury, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). Garcia’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
*
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should not be published and is not precedent except under the limited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.
(1998). Although Garcia contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would
overrule it 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 (2000). Garcia properly concedes that his
argument is foreclosed, but he raises it here to preserve for
further review. Accordingly, Garcia’s conviction is affirmed.
Garcia also contends that his sentence must be vacated and his
case remanded for resentencing because the district court erred by
sentencing him under a mandatory Sentencing Guidelines regime, in
light of United States v. Booker, 543 U.S. 220 (2005). Garcia
preserved this contention at the district court; thus, the
government must prove beyond a reasonable doubt that the district
court would have imposed the same sentence had the Guidelines been
advisory. See United States v. Walters, 418 F.3d 461, 463-64 (5th
Cir. 2005). Here, the sentencing transcript is silent with regard
to whether the district court would have imposed the same sentence
had the Guidelines been advisory. As such, the government cannot
show that the error was harmless beyond a reasonable doubt.
Accordingly, we REMAND to the district court to allow the
district court to resentence Garcia-Sanchez if, in its discretion
under the now-advisory Guidelines, it chooses to do so.
2
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.
3