United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-41340
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANGEL RODRIGUEZ-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-458-ALL
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Before Barksdale, Stewart, and Clement, Circuit Judges.
PER CURIAM:*
Jose Angel Rodriguez-Perez (Rodriguez) appeals his 37-month
prison sentence, imposed following his guilty plea to being an
alien unlawfully found in the United States after deportation and
after having been convicted of a felony, in violation of 8 U.S.C.
§ 1326(a) and (b).
The Government contends that Rodriguez waived this appeal
pursuant to a waiver-of-appeal provision in his written plea
agreement. That waiver provision stated that Rodriguez was
*
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this opinion should not be published and is not precedent except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. 04-41340
-2-
“waiv[ing] the right to appeal the sentence imposed or the manner
in which it was determined,” except for an upward departure or a
sentence imposed above the statutory maximum. At Rodriguez’s
rearraignment proceeding, the magistrate judge called attention
to the waiver-of-appeal provision in Rodriguez’s plea agreement
but advised him that he retained his right to appeal an “illegal
sentence.” It is arguable that this advice was an inaccurate
characterization of the appeal waiver and thus did not comply
with FED. R. CRIM. P. 11(b)(1)(N)’s requirement that the court
advise the defendant of “the terms of any plea-agreement
provision waiving the right to appeal.” Accordingly, we conclude
that the appeal waiver was not knowing and voluntary, see United
States v. Robinson, 187 F.3d 516, 517–18 (5th Cir. 1999), and
that it therefore does not bar this appeal.
Rodriguez argues that his sentence must be vacated and his
case remanded for resentencing because the district court
committed reversible error by sentencing him pursuant to a
mandatory Sentencing Guidelines regime, in light of United States
v. Booker, 543 U.S. 220 (2005). Rodriguez’s objection in
district court, pursuant to Blakely v. Washington, 542 U.S. 296
(2004), was sufficient to preserve this issue for harmless-error
review. United States v. Walters, 418 F.3d 461, 463 (5th Cir.
2005); see United States v. Molina, No. 04-40876, 2006 WL 905978
at *4 (5th Cir. Apr. 4, 2006) (unpublished). The district
court’s sentence pursuant to a mandatory Guidelines scheme
No. 04-41340
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constitutes “Fanfan” error. See Walters, 418 F.3d at 463-64.
Because the sentencing transcript is silent regarding whether the
district court would have imposed the same sentence had the
Guidelines been advisory, the Government has failed to meet its
burden of proving beyond a reasonable doubt that the district
court would have imposed the same sentence had the Guidelines
been advisory only. See United States v. Woods, 440 F.3d 255,
257 (5th Cir. 2006). Accordingly, we vacate and remand for
resentencing.
In “the interest of judicial efficiency and to provide
guidance on remand,” see United States v. Murillo-Lopez, 444 F.3d
337, 339 (5th Cir. 2006), we address other sentencing issues
raised by Rodriguez. Rodriguez contends that the district court
erred by imposing a 16-level Sentencing Guidelines increase for
having committed a prior “crime of violence,” based on his 1992
Texas conviction of burglary of a habitation. He maintains that
the elements of the 1992 offense do not include the use or
attempted or threatened use of physical force against another, as
required by U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because Rodriguez did
not raise this particular argument in the district court, we
review it for plain error only. See United States v. Olano, 507
U.S. 725, 731-37 (1993); United States v. Medina-Anicacio, 325
F.3d 638, 643 (5th Cir. 2003). We have held that the Texas
offense of burglary of a dwelling is equivalent to the enumerated
offense of “burglary of a dwelling” in § 2L1.2, cmt. n.1(B)(iii).
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See United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006). No error,
plain or otherwise, is evident.
Rodriguez also argues that the “felony” and “aggravated
felony” provisions of § 1326(b) are unconstitutional. This
constitutional challenge to § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rodriguez contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), 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). Rodriguez 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.
We AFFIRM Rodriguez’s conviction, VACATE his sentence, and
REMAND the case for resentencing.