United States v. Durazo ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-41042
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO EDUARDO DURAZO, also known as Alfredo Eduardo
Gonzalez Durazo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:03-CR-85-ALL
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Alfredo Eduardo Durazo appeals his conviction and sentence
for possession with the intent to distribute more than five
kilograms of cocaine. Durazo argues that the district court
committed reversible error under United States v. Booker, 543
U.S. 220 (2005), by sentencing him pursuant to a mandatory
application of the Sentencing Guidelines.
The district court erred by sentencing Durazo under a
mandatory sentencing guidelines scheme. See United States v.
*
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this opinion should not be published and is not precedent except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. 04-41042
-2-
Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir. 2005) cert. denied,
126 S. Ct. 464 (2005). Although both parties concede review is
for plain error, this court determines the proper standard of
review. United States v. Molina, No. 04-40876, 2006 WL 905978 *4
(5th Cir. Apr. 4, 2006) (unpublished). Because the issue is
preserved by the Blakely objection in the district court, this
court reviews for harmless error. See United States v.
Rodriguez-Mesa, 443 F.3d 397, 404 (5th Cir. 2006); United States
v. Walters, 418 F.3d 461, 464 (5th Cir. 2005). The Government
has not shown beyond a reasonable doubt that the error was
harmless. See Walters, 418 F.3d at 463-64. Accordingly,
Durazo’s sentence is vacated, and this case is remanded for
resentencing.
Durazo argues for the first time on appeal that the statute
of conviction, 21 U.S.C. § 841, is unconstitutional under
Apprendi v. New Jersey, 530 U.S. 466 (2000). However, he
concedes that this issue is foreclosed and raises it only to
preserve it for further review. The argument is foreclosed. See
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.