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. 04-41752
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALBERTO GARCIA-GALEANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-462-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Luis Alberto Garcia-Galeano appeals his guilty-plea conviction
and sentence for illegal reentry into the United States following
deportation in violation of 8 U.S.C. § 1326(a) and (b).
Garcia-Galeano argues 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). He also contends that his sentence
*
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this opinion should not be published and is not precedent except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. 04-41752
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pursuant to a mandatory Guidelines regime was a structural error.
Garcia-Galeano concedes that his claim of structural error is
foreclosed by circuit precedent, see United States v.
Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied 126
S. Ct. 464 (2005), but he raises the argument here to preserve it
for further review.
Garcia-Galeano’s sentence pursuant to a mandatory Sentencing
Guidelines regime constitutes Fanfan error. See United States v.
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Garcia-Galeano
preserved his Fanfan challenge in the district court by raising an
objection based on Blakely v. Washington, 542 U.S. 296 (2004), and
the Government so concedes. See United States v. Rodriguez-Mesa,
443 F.3d 397, 404 (5th Cir. 2006). We review a preserved Fanfan
challenge for harmless error. Walters, 418 F.3d at 463-64; cf.
United States v. Mendoza-Blanco, 440 F.3d 264, 265 n.7 (5th Cir.
2005). The Government thus bears the burden of proving beyond a
reasonable doubt that the district court would have imposed the
same sentence had the Guidelines been advisory only. See id. at
464.
The sentencing transcript is silent on whether the district
court would have imposed the same sentence under an advisory
Guidelines scheme. The Government thus has not met its burden
of establishing beyond a reasonable doubt that the district court’s
error was harmless. See id. We therefore vacate Garcia-Galeano’s
No. 04-41752
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sentence and remand the case for resentencing in accordance with
Booker.
Garcia-Galeano next argues, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), that the 57-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.
Garcia-Galeano’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.),
cert. denied, 126 S. Ct. 298 (2005). Garcia- Galeano 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. Accordingly, Garcia-Galeano’s
conviction is affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.