United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 19, 2006
Charles R. Fulbruge III
Clerk
No. 05-40152
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CIRILO MANCILLA-MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-810-ALL
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Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Cirilo Mancilla-Mendez (Mancilla) appeals from his conviction
and sentence for being found in the United States after having been
deported, in violation of 8 U.S.C. § 1326. Mancilla contends that
the district court committed reversible plain error by departing
upwards from the guideline sentencing fine range of $7,500-$75,000
to a fine of $125,000; that the district court committed reversible
plain error by sentencing him pursuant to the guideline sentencing
scheme found unconstitutional in United States v. Booker, 543 U.S.
*
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opinion should not be published and is not precedent except under the limited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.
220 (2005), and that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional. He contends
that the waiver provision of his plea agreement does not preclude
him from raising those arguments on appeal.
The Government does not rely on the waiver provision to bar
Mancilla’s upward-departure contention or his constitutional
challenge to § 1326(b). We therefore do not enforce the waiver as
to those contentions. See United States v. Lang, 440 F.3d 212, 213
(5th Cir. 2006). Moreover, Mancilla’s contention that the district
court erred by sentencing him under the formerly mandatory
guideline sentencing regime is not barred by his plea agreement.
See United States v. Reyes-Celestino, 443 F.3d 451, 453 (5th Cir.
2006).
The district court imposed the $125,000 fine based solely on
Mancilla’s ability to pay a fine. A defendant’s socioeconomic
status is an impermissible factor on which to base an upward
departure. See United States v. Painter, 375 F.3d 336, 339 (2004);
United States v. Hatchett, 923 F.2d 369, 373-75 (5th Cir. 1991).
There is a reasonable probability that the district court would
have imposed a lower fine sentence had it realized that Mancilla’s
ability to pay was an impermissible factor for a departure. See
United States v. Jones, 444 F.3d 430, 437 (5th Cir. 2006); United
States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005). As to the
fine only, Mancilla’s sentence is vacated.
Mancilla correctly concedes that he cannot satisfy the plain-
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error review standard as to his contention that the district court
erred by sentencing him under the formerly mandatory guideline
sentencing regime. See United States v. Valenzuela-Quevedo,
407 F.3d 728, 732-33 (5th Cir.), cert. denied, 126 S. Ct. 267
(2005); United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005). Mancilla raises his contention
to preserve it for further review.
Mancilla’s constitutional challenge to § 1326(b) is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Mancilla 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). Mancilla 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.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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