United States v. Encarnacion-Maldonado , 168 F. App'x 592 ( 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. 04-41154
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONEL ENCARNACION-MALDONADO, also known as Leonel
Encarnacion-Estrada,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-266-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Leonel Encarnacion-Maldonado appeals from his guilty-plea
conviction and sentence for being present in the United States
after having been previously removed. He was sentenced to 37
months of imprisonment and two years of supervised release.
Encarnacion-Maldonado’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Encarnacion-Maldonado contends that Almendarez-Torres
was incorrectly decided and that a majority of the Supreme Court
*
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this opinion should not be published and is not precedent except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. 04-41154
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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). Encarnacion-Maldonado
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.
Encarnacion-Maldonado asserts that his sentence is invalid
in light of United States v. Booker, 543 U.S. 220 (2005).
Because the district court sentenced Encarnacion-Maldonado under
a mandatory guidelines regime, it committed a Fanfan error. See
United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).
Because the Government concedes that Encarnacion-Maldonado
preserved his Fanfan claim, this court reviews for harmless
error. Id.; United States v. Mares, 402 F.3d 511, 520 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005). Under this standard
of review, the Government bears the burden of proving beyond a
reasonable doubt that the district court would not have sentenced
Encarnacion-Maldonado differently under an advisory guidelines
sentencing regime. Walters, 418 F.3d at 464.
The record contains no indication that the district court
would have imposed the same sentence absent the error. Although
the district court stated an alternative sentence it would have
imposed in the absence of the Sentencing Guidelines, that
No. 04-41154
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alternative sentence was more lenient than the imposed sentence.
The Government thus cannot meet its burden. Accordingly,
Encarnacion-Maldonado’s sentence is vacated and the case is
remanded for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.