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United States v. Toledo-Vides , 169 F. App'x 412 ( 2006 )


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  •                                                          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. 04-41034
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALBERTO TOLEDO-VIDES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-188-1
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Luis Alberto Toledo-Vides appeals from his guilty-plea
conviction for reentry of a deported alien, in violation of
    8 U.S.C. § 1326
    .    Toledo-Vides argues that his sentence should be
vacated and remanded because the district court sentenced him
under the mandatory guidelines scheme held unconstitutional in
United States v. Booker,
    543 U.S. 220
     (2005).
Because the district court sentenced Toledo-Vides under a
mandatory guidelines regime, it committed error.     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this opinion should not be published and is not precedent except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. 04-41034
-2-
States v. Valenzuela-Quevado,
    407 F.3d 728
    , 733 (5th Cir.), cert.
denied,
    126 S. Ct. 267
     (2005); see also United States v. Walters,
    418 F.3d 461
    , 463 (5th Cir. 2005).   The Government concedes that
Toledo-Vides’s objection below preserved his claim.    We cannot
affirm the erroneous sentence unless the Government shows that
the error is harmless beyond a reasonable doubt.   See United
States v. Pineiro,
    410 F.3d 282
    , 285-86 (5th Cir. 2005).     We
conclude that the Government has not met its burden.    See United
States v. Garza,
    429 F.3d 165
    , 171 (5th Cir. 2005).    We therefore
VACATE Toledo-Vides’s sentence and remand for re-sentencing.
Toledo-Vides also challenges the constitutionality of
    8 U.S.C. § 1326
    (b).   His constitutional challenge is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
    , 235 (1998).
Although Toledo-Vides 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).   Toledo-Vides 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, Toledo-Vides’s
conviction is AFFIRMED.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.