United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2006
Charles R. Fulbruge III
Clerk
No. 04-41400
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONEL AVILA-CARBAJAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1601-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Leonel Avila-Carbajal appeals from his guilty-plea
conviction and sentence for attempted reentry after deportation.
Avila-Carbajal argues that the district court erred by sentencing
him under the mandatory Sentencing Guidelines held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005).
We agree. However, Avila-Carbajal’s argument that such error was
structural is foreclosed. See United States v. Martinez-Lugo,
411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464
*
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this opinion should not be published and is not precedent except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. 04-41400
-2-
(2005). Because the Government has failed to show that the error
was harmless beyond a reasonable doubt, Avila-Carbajal’s sentence
must be vacated and the case remanded for resentencing. See
United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005);
United States v. Pineiro, 410 F.3d 282, 287 (5th Cir. 2005).
Avila-Carbajal’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Avila-Carbajal 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). Avila-Carbajal 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.
For the foregoing reasons, we AFFIRM Avila-Carbajal’s
conviction, VACATE Avila-Carbajal’s sentence, and REMAND for
resentencing in accordance with this opinion.