United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 9, 2006
Charles R. Fulbruge III
Clerk
No. 05-40132
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL VILLEDA-TAVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-595-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Saul Villeda-Tavera (Villeda) appeals following his
guilty-plea conviction for being found in the United States after
a previous deportation, in violation of 8 U.S.C. § 1326. Villeda
contends that his sentence should be vacated and remanded because
the district court sentenced him under the mandatory guidelines
scheme held unconstitutional in United States v. Booker, 543 U.S.
220 (2005).
*
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this opinion should not be published and is not precedent except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. 05-40132
-2-
As the district court sentenced Villeda under a mandatory
guidelines regime, it committed Fanfan error. See United States
v. Valenzuela-Quevado, 407 F.3d 728, 733 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005). When a defendant has preserved a
Fanfan challenge in the district court, this court reviews for
harmless error. United States v. Walters, 418 F.3d 461, 463 (5th
Cir. 2005); Valenzuela-Quevedo, 407 F.3d at 732-33. Villeda’s
Fanfan challenge was preserved by his objection in the district
court under Blakely v. Washington, 542 U.S. 296 (2004). See
United States v. Reyes-Celestino, 443 F.3d 451, 453 (5th Cir.
2006).
We conclude that the Government has not met its burden of
showing beyond a reasonable doubt that the district court would
have imposed the same sentence absent the error. See id.; United
States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005), cert.
denied, 126 S. Ct. 1444 (2006). We therefore vacate Villeda’s
sentence and remand for resentencing.
Villeda also challenges the constitutionality of § 1326(b)
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Villeda’s constitutional challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although
Villeda 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
No. 05-40132
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remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Villeda
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. Therefore, Villeda’s conviction
is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.