United States v. De La Garza-Rojas , 169 F. App'x 393 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-40114
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR DE LA GARZA-ROJAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1642-ALL
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Hector De La Garza-Rojas (De La Garza) appeals his
conviction and sentence for illegal reentry after a previous
deportation. De La Garza argues that the district reversibly
erred under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), by sentencing him pursuant to a mandatory application of
the Sentencing Guidelines.
There was no “Booker” error or Sixth Amendment violation
because the only enhancement to De La Garza’s sentence was for
*
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this opinion should not be published and is not precedent except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. 05-40114
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his prior conviction. See Booker, 125 S. Ct. at 756, 769.
Nevertheless, the district court committed “Fanfan” error by
sentencing De La Garza pursuant to a mandatory guidelines scheme.
See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.
2005). Although De La Garza contends that such error is
structural, he acknowledges that this argument is foreclosed by
circuit precedent; he raises the issue here only for preservation
purposes.
The Government concedes that De La Garza preserved his
Fanfan claim. As such, this court reviews the claim for harmless
error. See Walters, 418 F.3d at 464. There is no indication in
the record that the district court would have imposed the same
sentence had the guidelines been advisory rather than mandatory.
Accordingly, we VACATE the sentence and REMAND for resentencing
in accordance with Booker.
De La Garza next argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional on their face and as applied in his case in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). De La
Garza’s constitutional challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although De
La Garza 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
No. 05-40114
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remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). De La Garza
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. Accordingly, De La Garza’s
conviction is AFFIRMED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.