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United States v. Gomez , 165 F. App'x 353 ( 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                 February 1, 2006
Charles R. Fulbruge III
Clerk
No. 04-41691
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EFRAIN GOMEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1044-ALL
Before KING, GARWOOD and SMITH, Circuit Judges.
PER CURIAM:*
Efrain Gomez appeals the sentence imposed following this
guilty-plea conviction for illegal entry, in violation of 8 U.S.C.
§ 1326.   He argues first that the district court erred when, over
his proper objection, it classified his prior state conviction as
a drug-trafficking offense that warranted a 12-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(B).
*
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opinion should not be published and is not precedent except under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.
As   the   Government      concedes,      Gomez     both    preserved    this
contention below and is correct in his assertion that the district
court   erred   in   applying    this       guidelines    enhancement      because
California Health & Safety Code § 11352(a), the state statute under
which Gomez was convicted, is worded so that some, but not all,
violations of the statute constitute a drug-trafficking offense
consistent    with   the   guidelines       definition,    and     the   documents
introduced by the Government to support the enhancement indicated
only that Gomez had been convicted of violating that state statute.
See United States v. Garza-Lopez,
    410 F.3d 268
    , 273-74 (5th Cir.),
cert. denied,
    126 S. Ct. 298 
    (2005); United States v. Gutierrez-
Ramirez,
    405 F.3d 352
    , 352-60 (5th Cir.), cert. denied,
    126 S. Ct. 217 
    (2005).     We reject the Government’s contention that this
properly preserved error was harmless.                 The Government has not
carried its burden in this respect because the record does not
sufficiently indicate that the district court would have imposed
the same sentence absent the guidelines error.                  See United States
v. Ahmed,
    324 F.3d 368
    , 374 (5th Cir. 2003); United States v.
Waskom,
    179 F.3d 303
    , 312 (5th Cir. 1999).
Gomez argues that, in light of United States v. Booker,
    125 S. Ct. 738 
    (2005), the district court erred in sentencing him under
a mandatory guidelines scheme.          The Government concedes the error
and its proper preservation below, but contends it was harmless.
However, the Government has not carried its burden in this respect.
2
Finally, Gomez challenges the constitutionality of 8 U.S.C. §
1326(b)’s    treatment    of     prior       felony    and   aggravated   felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey,
    530 U.S. 466 
    (2000).             This constitutional challenge is
foreclosed by Almendarez-Torres v. United States,
    523 U.S. 224
    , 235
(1998).     Although     Gomez   contends       that    Almendarez-Torres   was
incorrectly decided and that a majority of the Supreme Court would
overrule Almendariz-Torres in light of Apprendi, we have repeatedly
rejected such arguments on the basis that Almendariz-Torres remains
binding.    See
    Garza-Lopez, 410 F.3d at 276
    .
We therefore AFFIRM Gomez’s conviction, but we VACATE his
sentence and REMAND for resentencing consistent with this opinion
and the Supreme Court’s opinion in Booker.
3