United States v. Mendez-Leyva , 168 F. App'x 568 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 22, 2006
Charles R. Fulbruge III
No. 04-41020 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIMON MENDEZ-LEYVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-358-1
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Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Simon Mendez-Leyva (Mendez) appeals his guilty-plea
conviction and 18-month sentence for illegal reentry following
deportation. Mendez argues that the district court improperly
enhanced his base offense level because his prior state
conviction for possession of marijuana did not constitute an
“aggravated felony” pursuant to U.S.S.G. § 2L1.2(b)(1)(C). This
assertion is without merit. See United States v. Caicedo-Cuero,
312 F.3d 697, 706-11 (5th Cir. 2002).
*
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this opinion should not be published and is not precedent except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. 04-41020
-2-
Mendez also argues that 8 U.S.C. § 1326(b) is
unconstitutional because it treats prior felony and aggravated
felony convictions as sentencing factors. Mendez’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Mendez
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). Mendez 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.
Mendez also contends that the district court erred in
sentencing him pursuant to the mandatory guideline regime held
unconstitutional in United States v. Booker, 543 U.S. 220, 125
S. Ct. 738, 764-65 (2005). The sentencing transcript is devoid
of evidence that the district court would have imposed the same
sentence under an advisory regime, and, therefore, the Government
has not borne its burden of establishing beyond a reasonable
doubt that the district court’s error was harmless. See United
States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
AFFIRMED. Case remanded for the district court to decide
whether to resentence.