United States v. Alvarado , 170 F. App'x 880 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 14, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40082
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
IVAN ALVARADO, also known as Erik Fuentes-Garcia
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(USDC No. 5:04-CR-1837-1)
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Ivan Alvarado appeals his sentence following his guilty plea
conviction for illegal reentry. Alvarado argues that the “felony”
and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and
(b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530
U.S. 466 (2000). Alvarado’s constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Alvarado 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.
*
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should not be published and is not precedent except under the limited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.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied 126 S. Ct. 298 (2005). Alvarado 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.
Alvarado also argues that the district court erred under
United States v. Booker, 543 U.S. 220 (2005), by sentencing him
under a mandatory application of the federal sentencing guidelines.
The government concedes that Alvarado preserved this issue for
appeal. However, the government cannot show that the error was
harmless. See United States v. Walters, 418 F.3d 461, 463-64 (5th
Cir. 2005). Accordingly, we REMAND to the district court to allow
the district court to resentence Alvarado if, in its discretion
under the now-advisory Guidelines, it chooses to do so.
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.
2