United States v. Arellano-Ramirez , 169 F. App'x 364 ( 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 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-41444
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL ARELLANO-RAMIREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-346-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges:
PER CURIAM:*
Angel Arellano-Ramirez appeals his guilty-plea conviction and
sentence for being unlawfully present in the United States
following deportation. He argues that the district court committed
reversible error under United States v. Booker, 543 U.S. 220(2005), by sentencing him pursuant to a mandatory application of
the guidelines. As the Government concedes, Arellano preserved
this issue for review by raising an objection based upon Blakely v.
Washington, 542 U.S. 296 (2004), in the district court. See United
*
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this opinion should not be published and is not precedent except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. 04-41444
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States v. Walters, 418 F.3d 461, 462-63 (5th Cir. 2005).
Accordingly, the question before us “is whether the government has
met its burden to show harmless error beyond a reasonable doubt.”
Id. at 464.
The district court erred by sentencing Arellano under the
mistaken belief that the guidelines were mandatory. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005). While the district court denied
Arellano’s request for a downward departure, it sentenced him at
the low end of the guidelines range and did not state what sentence
it would impose if the guidelines were held unconstitutional. In
these circumstances, the Government has not met its “arduous
burden” of showing that the error was harmless. United States v.
Garza, 429 F.3d 165, 170 (5th Cir. 2005) (internal quotation marks
omitted). Accordingly, we vacate Arellano’s sentence and remand to
the district court for resentencing.
Arellano’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Arellano 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). Arellano properly concedes that his argument is
No. 04-41444
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foreclosed in light of Almendarez-Torres and circuit precedent, but
he raises it here to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.