United States v. Vega-Diaz

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 30, 2005
June 30, 2005
In the
United States Court of Appeals Charles R. Fulbruge III
Clerk
for the Fifth Circuit
_______________
m 04-41290
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SALVADOR VEGA-DIAZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 5:04-CR-473-1
______________________________
Before DAVIS, SMITH, and DENNIS, his forty-six-month sentence of imprisonment,
Circuit Judges. which is to be followed by a three-year term of
supervised release. He argues that his sen-
PER CURIAM:* tence under a mandatory application of the
sentencing guidelines must be vacated in light
Having pleaded guilty of illegal re-entry of United States v. Booker, 125 S. Ct. 738after deportation, Salvador Vega-Diaz appeals (2005). We review this issue for harmless
error, because Vega-Diaz did raise it in the
district court.
*
Pursuant to 5TH CIR. R. 47.5, the court has de-
Our review of the record convinces us that
termined that this opinion should not be published
and is not precedent except under the limited cir-
the district court would have imposed a lower
cumstances set forth in 5TH CIR. R. 47.5.4. sentence under advisory guidelines. Conse-
quently, we vacate the sentence and remand
for resentencing. United States v. Pennell,
409 F.3d 240, 246 (5th Cir. 2005); United
States v. Gracia-Cantu, 302 F.3d 308, 313
(5th Cir. 2002).
The decision to remand makes it unneces-
sary for us to address whether the enhance-
ment of Vega-Diaz’s sentence based on prior
drug trafficking convictions pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(i) constitutes
reversible error in light of United States v.
Gutierrez-Ramirez, 405 F.3d 352, 353-60 (5th
Cir. 2005). United States v. Angeles-
Mendoza, 407 F.3d 742, 754 & nn.26-27 (5th
Cir. 2005). The district court will have the
benefit on remand of the record supplements
provided by the government relative to this
issue.
Finally, Vega-Diaz argues that the “felony”
and “aggravated felony” provisions of 8
U.S.C. § 1326(a) and (b) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). We agree with Vega-Diaz’s
concession that this issue is foreclosed. See
Almendarez-Torres v. United States, 523 U.S.
224, 247 (1998); United States v. Mancia-
Perez, 331 F.3d 464, 470 (5th Cir. 2003).
The judgment of sentence is VACATED
and REMANDED for resentencing.
2