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 2006-12

United States v. Andrade-Gonzalez , 213 F. App'x 263 ( 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                December 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-41262
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR ANDRADE-GONZALEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1045-ALL
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Salvador Andrade-Gonzalez (Andrade) appeals his guilty-plea
conviction of, and sentence for, violating
    8 U.S.C. § 1326
     by
attempting to re-enter the United States without permission after
deportation.
Andrade argues, in light of Apprendi v. New Jersey,
    530 U.S. 466
     (2000), that the 41-month term of imprisonment imposed in his
case exceeds the statutory maximum sentence allowed for the
§ 1326(a) offense charged in his indictment.   He challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
*
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this opinion should not be published and is not precedent except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. 05-41262
-2-
aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury.
Andrade’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
    , 235 (1998).
Although he 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
remains binding.   See United States v. Garza-Lopez,
    410 F.3d 268
    ,
276 (5th Cir.), cert. denied,
    126 S. Ct. 298
     (2005).    Andrade
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.
Andrade also argues that his sentence runs afoul of United
States v. Booker,
    543 U.S. 220
     (2005), because he was sentenced
pursuant to a pre-Booker mandatory application of the Sentencing
Guidelines.   The district court committed Fanfan error by
sentencing Andrade pursuant to a mandatory guidelines system.
See United States v. Walters,
    418 F.3d 461
    , 463-64 (5th Cir.
2005).   As the Government concedes, Andrade’s objection under
Blakely v. Washington,
    542 U.S. 296
     (2004), at sentencing
preserved his claim for appeal.   See United States v. Rodriguez-
Mesa,
    443 F.3d 397
    , 404 (5th Cir. 2006).    Thus, review is for
harmless error beyond a reasonable doubt.
    Id.
    No. 05-41262
-3-
The Government fails to carry its burden of showing beyond a
reasonable doubt that the error did not affect Andrade’s
sentence.   See United States v. Sibley,
    448 F.3d 754
    , 760 (5th
Cir. 2006).   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.   See
    id.
         We
therefore vacate Andrade’s sentence and remand the case for
resentencing in accordance with Booker.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.