United States v. Escobedo-Escamilla , 169 F. App'x 365 ( 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
No. 04-41317 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO ROBINSON ESCOBEDO-ESCAMILLA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-508-1
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Ramiro Robinson Escobedo-Escamilla (Escobedo) appeals his
guilty-plea conviction and 46-month sentence for illegal reentry
following deportation. Escobedo argues that the district court
improperly enhanced his base offense level because his prior
alien-transporting offense did not constitute an “alien
smuggling” offense pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(vii).
As Escobedo concedes, this assertion is without merit. See
United States v. Solis-Campozano, 312 F.3d 164, 167-68 (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this opinion should not be published and is not precedent except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. 04-41317
-2-
Escobedo also argues that 8 U.S.C. § 1326(b) is
unconstitutional because it treats prior felony and aggravated
felony convictions as sentencing factors. Escobedo’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Escobedo
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). Escobedo 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.
Escobedo 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).
CONVICTION AFFIRMED; VACATED AND REMANDED FOR RESENTENCING.