United States v. Sobrevilla-Silvestre , 169 F. App'x 417 ( 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 3, 2006
Charles R. Fulbruge III
Clerk
No. 04-41494
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO ANTONIO SOBREVILLA-SILVESTRE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1012-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Roberto Antonio Sobrevilla-Silvestre (Sobrevilla) appeals his
guilty-plea conviction and sentence for illegal reentry after
deportation. Sobrevilla’s constitutional challenge to the “felony”
and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b) is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Sobrevilla contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
*
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this opinion should not be published and is not precedent except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. 04-41494
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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). Sobrevilla 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.
Sobrevilla also argues that pursuant to United States v.
Booker, 125 S. Ct. 738 (2005), the district court erred when it
sentenced him under a mandatory application of the Sentencing
Guidelines. Sobrevilla is correct in his contention that the
district court erred when it sentenced him pursuant to a mandatory
guidelines system. See United States v. Valenzuela-Quevedo, 407
F.3d 728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005). The
Government concedes that Sobrevilla’s objection during sentencing
preserved his challenge for appellate review.
We review a preserved challenge to the mandatory application
of the Sentencing Guidelines for harmless error, and the Government
bears the burden of showing harmlessness. United States v.
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Before an error can
be held harmless, “the court must be able to declare a belief that
it was harmless beyond a reasonable doubt.” Id. Because the
Government has not met this burden, we VACATE Sobrevilla’s sentence
and REMAND for resentencing. We do not reach Sobrevilla’s argument
that the district court committed reversible plain error when it
No. 04-41494
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misapplied U.S.S.G. § 2L1.2(b)(1)(A)(ii) in his case. See United
States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
VACATE AND REMAND.