United States v. Gonzalez-Martinez , 168 F. App'x 569 ( 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
Clerk
No. 04-41029
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARDO GONZALEZ-MARTINEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-550-1
--------------------
Before KING, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Bernardo Gonzalez-Martinez appeals his guilty-plea
conviction of and sentence for being an alien found in the United
States illegally. Gonzalez-Martinez argues that there was error
under United States v. Booker, 543 U.S. 220 (2005), because he
was sentenced under the mandatory Sentencing Guidelines. He
asserts that the Government cannot show that the Booker error is
harmless beyond a reasonable doubt because the error is
structural and not subject to harmless error analysis. His
*
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this opinion should not be published and is not precedent except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. 04-41029
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argument that the error was structural is foreclosed. See United
States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert.
denied, 126 S. Ct. 464 (2005).
Gonzalez-Martinez also argues that, even if the error was
not structural, the error cannot be shown to be harmless beyond a
reasonable doubt. The Government concedes that Gonzalez-Martinez
has preserved the issue for appeal. Our review is thus for
harmless error. See United States v. Walters, 418 F.3d 461, 464
(5th Cir. 2005). The Government bears the burden of proving
beyond a reasonable doubt that the district court would not have
sentenced Gonzalez-Martinez differently under an advisory
guideline sentencing regime. See id.The instant record fails to provide clear commentary from
the district court regarding whether it would have imposed the
same sentence in a post-Booker environment. See id. The
Government thus has not carried its burden of showing harmless
error. See id. We therefore remand Gonzalez-Martinez’s case for
resentencing.
Gonzalez-Martinez challenges the constitutionality of
8 U.S.C. § 1326(b). His constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Gonzalez-Martinez 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
No. 04-41029
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arguments on the basis that Almendarez-Torres remains binding.
See United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.
2003). Gonzalez-Martinez 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.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.