United States v. Reyes-Sotelo , 223 F. App'x 428 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 27, 2007
Charles R. Fulbruge III
Clerk
No. 04-41308
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO REYES-SOTELO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-668-ALL
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mario Reyes-Sotelo (Reyes) appeals his conviction and 41-
month sentence for attempted illegal reentry. See 8 U.S.C.
§ 1326. Reyes argues that under United States v. Booker, 543
U.S. 220 (2005), his sentence must be vacated and his case
remanded for resentencing. He asserts that the district court
sentenced him pursuant to mandatory Sentencing Guidelines and
that the error was not harmless. Reyes asserts, in addition,
that § 1326(b) is unconstitutional.
*
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this opinion should not be published and is not precedent except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. 04-41308
-2-
The district court’s sentence pursuant to a mandatory
guidelines scheme constitutes Fanfan error. See United States v.
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). The sentencing
transcript is silent regarding whether the district court would
have imposed the same sentence had the Guidelines been advisory.
Thus, the Government has not met its burden of proving beyond a
reasonable doubt that the district court would have imposed the
same sentence under mandatory Guidelines. See United States v.
Zamora-Vallejo, 470 F.3d 592, 595 (5th Cir. 2006)(internal
quotations and citation omitted).
Reyes argues that § 1326(b) is unconstitutional. Reyes’s
constitutional challenge to § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Reyes properly concedes
that his argument is foreclosed in light of Almendarez-Torres and
circuit precedent and raises it here only to preserve it for
further review.
Accordingly, we AFFIRM Reyes’s conviction, VACATE his
sentence, and REMAND the case for resentencing.