United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 26, 2007
Charles R. Fulbruge III
Clerk
No. 06-40656
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS SEGOVIANO-CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2375-ALL
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Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Jose Luis Segoviano-Cruz (Segoviano) appeals his conviction
and sentence for illegal reentry after deportation. Segoviano
contends, and the Government concedes, that the district court
misapplied the Sentencing Guidelines by increasing his sentence
based on a prior Texas conviction that was not a “crime of
violence” under the Guidelines and United States v. Fierro-Reyna,
466 F.3d 324, 327-29 (5th Cir. 2006). The Government argues that
the error was harmless but fails to show that the error did not
*
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this opinion should not be published and is not precedent except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.
affect the selection of the sentence. See Williams v. United
States, 503 U.S. 193, 203 (1992), cited in United States v. Davis,
___ F.3d ___, 2007 WL 259568, at *4 (5th Cir. Jan. 31, 2007). The
Government failed to bear its burden of showing that the district
court would have imposed the same sentence absent the error. See
William, 503 U.S. at 203. We vacate the sentence and remand for
resentencing in accordance with Fierro-Reyna.
Segoviano argues, in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), that any term of imprisonment of more than two years
exceeds the statutory maximum sentence allowed for the 8 U.S.C.
§ 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.
Segoviano’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). Segoviano 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. Segoviano’s conviction is affirmed.
2
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
3