United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 28, 2006
Charles R. Fulbruge III
Clerk
No. 04-20723
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO JUAREZ-JIMENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-21-1
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ernesto Juarez-Jimenez appeals the sentence he received for
his conviction for illegal reentry into the United States following
deportation subsequent to an aggravated felony conviction.
As an initial matter, this court must raise the issue of
mootness sua sponte because it is a threshold issue and implicates
Article III jurisdiction. See Bailey v. Southerland, 821 F.2d 277,
278 (5th Cir. 1987). According to the records of the Federal
Bureau of Prisons, Juarez-Jimenez was released from custody on
March 3, 2006.
*
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this opinion should not be published and is not precedent except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. 04-20723
-2-
To the extent that Juarez-Jimenez appeals his conviction, his
appeal is not moot simply because his term of imprisonment has
expired. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). However,
because Juarez-Jimenez’s term of imprisonment has expired, Juarez-
Jimenez’s appeal is moot to the extent that it challenges his
sentence of imprisonment. See United States v. Johnson, 529 U.S.
53, 60 (2000); United States v. Ramon, 320 F.3d 519, 519-20 (5th
Cir. 2003). Nevertheless, Juarez-Jimenez’s appeal is not moot to
the extent that it challenges the supervised release portion of his
sentence. See United States v. Lares-Meraz, 452 F.3d 352, 355 (5th
Cir. 2006).
Juarez-Jimenez argues, in light of Apprendi v. New Jersey, 530
U.S. 466 (2000), that the 30-month term of imprisonment imposed in
his case exceeds the statutory maximum sentence allowed for the
§ 1326(a) offense charged in his indictment. He challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury.
Juarez-Jimenez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he 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.),
No. 04-20723
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cert. denied, 126 S. Ct. 298 (2005). Juarez-Jimenez 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.
Juarez-Jimenez renews his argument, preserved in the district
court, that in light of the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004), his Sixth Amendment rights were
violated when the district court assessed an eight-level
enhancement under § 2L1.2(b)(1)(C).
Where, as here, an error under United States v. Booker, 543
U.S. 220 (2005), has been preserved in the district court, we “will
ordinarily vacate the sentence and remand,” unless the error is
harmless.” United States v. Pineiro, 410 F.3d 282, 284 (5th Cir.
2005) (internal quotation marks and citation omitted). The
Government bears the burden of demonstrating that the error was
harmless beyond a reasonable doubt. Id. at 285. In order to carry
this burden, the Government must show that the Booker error did not
affect the sentence, i.e., it must show that the district court
would have imposed the same sentence absent the error. United
States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
The Government concedes Booker error. However, it contends
that the error was harmless because it is clear beyond a reasonable
doubt that the district court would not have imposed a lesser
sentence if the Guidelines had been advisory rather than mandatory
at the time of Juarez-Jimenez’s sentencing. It notes that the
No. 04-20723
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district court imposed a sentence at the top of the guideline range
and that the district court found the sentence adequately addressed
the sentencing objectives of punishment and deterrence.
The imposition of the maximum sentence within the guideline
range alone is insufficient to establish that the Booker error was
harmless beyond a reasonable doubt. See United States v. Woods, 440
F.3d 255, 258-59 (5th Cir. 2006). In light of Woods, there is
nothing in the record which demonstrates beyond a reasonable doubt
that the district court would have imposed the same sentence under
the post-Booker advisory sentencing regime.
Accordingly, the Government cannot meet its burden, and Juarez-
Jimenez sentence is vacated and the case is remanded for
resentencing in accordance with Booker.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.