United States v. Paredes-Chavez , 169 F. App'x 852 ( 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. 04-41416
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FIDEL PAREDES-CHAVEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-476-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Fidel Paredes-Chavez (Paredes) appeals from his sentence
imposed pursuant to his guilty plea to illegal reentry after
deportation. Paredes contends that his sentence is
unconstitutional under United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005), because he was sentenced pursuant to the
mandatory Sentencing Guidelines regime.
The district court stated, however, that if the Guidelines had
not applied, the court would have imposed the same sentence that
*
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this opinion should not be published and is not precedent except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. 04-41416
-2-
Paredes received. Therefore, the Government has carried its burden
of establishing that the sentencing error in Paredes’s case was
harmless beyond a reasonable doubt. See United States v. Garza,
429 F.3d 165, 170 (5th Cir. 2005); United States v. Walters, 418
F.3d 461, 464-66 (5th Cir. 2005).
Paredes 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 Paredes 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). Paredes 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.
AFFIRMED.