United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-40058
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAURO HERNANDEZ-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-589-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Lauro Hernandez-Lopez appeals his guilty-plea conviction and
sentence for illegal reentry following deportation in violation
of 8 U.S.C. § 1326. He contends that the district court
committed reversible error when it sentenced him pursuant to the
mandatory United States Sentencing Guidelines held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005).
The district court erred when it sentenced Hernandez-Lopez
pursuant to a mandatory guidelines system. See United States v.
*
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this opinion should not be published and is not precedent except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. 06-40058
-2-
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,
126 S. Ct. 267 (2005). Because Hernandez-Lopez preserved his
Fanfan challenge in the district court by raising an objection
based on Blakely v. Washington, 542 U.S. 296 (2004), we review
for harmless error. See United States v. Rodriguez-Mesa, 443
F.3d 397, 404 (5th Cir. 2006). The Government bears the burden
of proving beyond a reasonable doubt that the district court
would not have sentenced Hernandez-Lopez differently under an
advisory guidelines system. See United States v. Walters,
418 F.3d 461, 464 (5th Cir. 2005).
The sentencing transcript is silent with regard to whether
the district court would have imposed the same sentence had the
Guidelines been advisory rather than mandatory. Further, the
district court’s grant of a downward departure alone is
insufficient to satisfy the Government’s burden of showing beyond
a reasonable doubt that the error did not affect Hernandez-
Lopez’s sentence. See United States v. Garza, 429 F.3d 165, 171
(5th Cir. 2005), cert. denied, 126 S. Ct. 1444 (2006). We
therefore vacate Hernandez-Lopez’s sentence and remand the case
for resentencing.
Hernandez-Lopez also 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 in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000).
No. 06-40058
-3-
Herndandez-Lopez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Hernandez-Lopez 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). Hernandez-Lopez properly concedes that his
argument is foreclosed in light of Almendarez-Torres and circuit
precedent, but raises it here to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.