United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2006
Charles R. Fulbruge III
Clerk
No. 04-11272
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RIGOBERTO GONZALEZ-ESQUIVEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
No. 3:04-CR-214-ALL-G
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Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM*
Rigoberto Gonzalez-Esquivel (Gonzalez) appeals from his
sentence after pleading guilty to a single count of illegal
reentry after having been removed from the country. Finding no
error, we affirm.
I.
The only relevant facts in this case relate to Gonzalez’s
criminal history and sentence, which was imposed before Booker.
Gonzalez is a national and citizen of Mexico. During 1998,
Gonzalez was ordered removed from the United States on two
*
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this opinion should not be published and is not precedent except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. 04-11272
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separate occasions. On at least 13 other occasions he was
apprehended for being illegally in the United States and allowed
to voluntarily return to Mexico. In September 2001, Gonzalez
illegally entered the United States through Laredo, Texas. In
May 2004, Gonzalez was arrested in Dallas, Texas for failure to
identify and a probation violation and the charges in this case
were instituted.
The Presentence Investigation Report (PSR) fixed Gonzalez’s
base offense level at 8 pursuant to USSG § 2L1.2(a). His offense
level was increased by 8 pursuant to USSG § 2L1.2(b)(1)(C)
because Gonzalez had previously been deported after conviction
for an aggravated felony (possession of cocaine). After a three
level deduction for acceptance of responsibility, Gonzalez’s
offense level was set at 13. Three prior convictions resulted in
5 criminal history points. The PSR assessed two additional
criminal history points because the instant offense occurred
while Gonzalez was on probation. The resulting offense level of
13 and criminal history category of IV yielded a guideline
sentencing range of 24 to 30 months.
Gonzalez filed several objections to the PSR including
arguments (1) that the application of the 8 level enhancement
based on his previous conviction for an aggravated felony
violates Blakely; (2) that the enhancements to the calculation of
his criminal history violate Blakely and Apprendi; and (3) that
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the guidelines as a whole are unconstitutional. The district
court rejected these objections. At sentencing, following the
suggestion of the PSR, the district court imposed an upward
departure under USSG § 4A1.3(a)(2)(C) and (E) and sentenced
Gonzalez to 60 months imprisonment. Gonzalez appeals.
II.
Gonzalez argues first that his prior aggravated felony
conviction should have been alleged in the indictment and proven
beyond a reasonable doubt. He concedes that this argument was
rejected by the Supreme Court in Almendarez-Torres v. United
States, 523 U.S. 224 (1998) and is foreclosed by Fifth Circuit
authority. United States v. Garza-Lopez, 410 F.3d 268, 276 (5th
Cir.), cert. denied, 126 S. Ct. 298 (2005).
III.
Gonzalez argues next that his case should be remanded for
resentencing because he was sentenced under the mandatory
guidelines systems ruled unconstitutional in Booker. He argues
that the court committed Booker violations by enhancing his
offense level based on a prior conviction of an aggravated felony
and by increasing his criminal history category because he
committed the instant offense while on probation. These
arguments are without merit.
Booker error requires consideration of a fact in sentencing
(other than a prior conviction) that was not found by the jury or
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admitted by the defendant. United States v. Booker, 125 S.Ct.
738, 747, n.1 (2005); United States v. Guevara, 408 F.3d 252, 261
(5th Cir. 2005). Both the enhancement and the increase in
criminal history category Gonzalez complains of rest solely on
the facts of Gonzalez’s prior convictions.
Gonzalez also claims Booker error on the basis that he was
sentenced under a mandatory, rather than a discretionary,
guideline system (Fanfan error). This argument ignores the fact
that after considering the mandatory elements of the guidelines,
the district court in Gonzalez’s case elected to exercise its
discretion to upwardly depart and impose a sentence that was not
bound by the previously mandatory guidelines. We question, as we
have done before, “[w]hether exercise of a court’s discretion to
depart upward is a decision made under a ‘mandatory Guidelines
regime,’ as needed for Booker error.” United States v. Jones,
435 F.3d 541, 543 (5th Cir. 2006). Again, we need not decide
that question, because even assuming Gonzalez can establish
Booker error under these circumstances, we find any error to be
harmless. Id.
Cases support the view that when the district court departs
upwardly, this discretionary increase in the sentence is enough
to demonstrate that the error is harmless, i.e., that the
district court would not have imposed a lighter sentence in an
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advisory regime. Id.(citing United States v. Rodriguez-Chavez,
153 Fed.Appx. 524 (10th Cir. 2005)).
In addition, the record as a whole demonstrates that the
judge in this case knew that the upward departure was
discretionary. The district court reviewed the provisions of the
sentencing guidelines that permitted discretionary departure.
USSG § 4A1.3(a)(1), (2)(C) and (E). It reviewed the defendant’s
conduct that satisfied the conditions of these provisions
including the fact that he violated his supervised release by re-
entering the United States, that on at least 13 occasions he
entered the United States illegally without being arrested, and
that his use of many aliases made tracking his whereabouts and
criminal activity difficult. The district court concluded that
“there is a substantial likelihood that the defendant will
continue to enter the United States illegally” and that “he has
been undeterred previously by other sanctions within the criminal
justice system such as probation or deportation.” Noting that
the Fifth Circuit had previously upheld a departure from a
guidelines range of 27 to 33 months up to 60 months, the district
court sentenced the defendant to 60 months imprisonment.
Although the district court at one point referred to the upward
departure using the word “must”, the single use of this word does
not overcome the remainder of the record which reflects that the
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district court was clearly making a discretionary decision in
imposing the upward departure.
Accordingly, we conclude that the government has borne its
burden of demonstrating that any error was harmless by
establishing beyond a reasonable doubt that the Booker error did
not contribute to the sentence Gonzalez received and that the
district court would have imposed the same sentence under an
advisory system. Jones, 435 F.3d at 543.
IV.
Gonzalez argues finally that the Due Process clause prevents
the imposition of a sentence above the maximum sentencing limits
as the merits majority in Booker defined the concept. He asks
this court to hold that the Ex Post Facto clause is incorporated
into the Due Process Clause, thereby precluding application of
the remedial majority opinion in Booker to “pipeline defendants”
such as himself. These arguments are foreclosed by United States
v. Scroggins, 411 F.3d 572, 577 (5th Cir. 2005).
V.
For the foregoing reasons, we affirm Gonzalez’s sentence.
AFFIRMED.
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