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. 05-40073
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE GARCIA-GOMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-566-All
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Garcia-Gomez appeals his guilty-plea sentence
for illegal reentry into the United States following deportation.
Garcia-Gomez first challenges the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense, arguing that they must be found by a jury in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). The Government
*
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opinion should not be published and is not precedent except under the limited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. 05-40073
-2-
argues that the sentence appeal waiver in Garcia-Gomez’s plea
agreement bars his claim.
The waiver-of-appeal provision is construed against the
Government as the drafter of the plea agreement. See United
States v. Somner, 127 F.3d 405, 408 (5th Cir. 1997). Because
Garcia-Gomez’s plea agreement does not specifically waive the
right to attack the constitutionality of § 1326(b), we conclude
that the waiver provision does not preclude this appeal. See id.
Garcia-Gomez cannot succeed on this claim, however, because
his constitutional challenge is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998). Although
Garcia-Gomez 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
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Garcia-Gomez 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.
Garcia-Gomez also contends 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 violation of United
States v. Booker, 543 U.S. 220 (2005). The Government argues
No. 05-40073
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that, under the terms of the plea agreement, Garcia-Gomez waived
his Booker/Fanfan argument. We review de novo whether a waiver
provision bars an appeal. United States v. Baymon, 312 F.3d 725,
727 (5th Cir. 2002). In United States v. Reyes-Celestino, 443
F.3d 451, 453 (5th Cir. 2006), we addressed waiver language
virtually identical to that in this case and held that it does
not bar an appeal based on Fanfan. See id.
Where, as in this case, a Booker/Fanfan error has been
preserved in the district court, we will ordinarily vacate and
remand for resentencing if the Government cannot show that the
error was harmless. See United States v. Walters, 418 F.3d 461,
463-64 (5th Cir. 2005). It is unclear that the district court
would have imposed the same sentence had the Guidelines been
advisory only. As such, the Government cannot meet its burden.
See id. at 464.
Accordingly, we vacate Garcia-Gomez’s sentence and remand
the case for resentencing.1
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
1
Garcia-Gomez also contends that an error under Booker is
structural because it affected the entire framework within which
his sentencing proceeded. We have previously rejected this
argument. See United States v. Malveaux, 411 F.3d 558, 561 n.9
(5th Cir.), cert. denied, 126 S. Ct. 194 (2005).