United States v. Rodriguez-Cardenas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 15, 2006
Charles R. Fulbruge III
Clerk
No. 04-41560
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS RODRIGUEZ-CARDENAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-897-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Luis Rodriguez-Cardenas appeals his guilty plea conviction
and sentence imposed for being an alien illegally present in the
United States following deportation. Rodriguez-Cardenas was
sentenced to a term of imprisonment of sixty-five months to be
followed by three years of supervised release.
Rodriguez-Cardenas argues that the district court plainly
erred in enhancing his offense level by sixteen levels based on
his prior state court conviction for burglary of a habitation.
*
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this opinion should not be published and is not precedent except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. 04-41560
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He argues that his burglary conviction is not an enumerated crime
of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii) and that his
offense did not require proof of the element of use, attempted
use, or threatened use of physical force against the person of
another. This court rejected Rodriguez-Cardenas’s argument in
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.
2005), which held that “‘burglary of a habitation’ is equivalent
to the enumerated [crime of violence] offense of ‘burglary of a
dwelling.’” The judgment of the district court is affirmed with
respect to this issue.
Rodriguez-Cardenas argues that the Government failed to
carry its burden of showing beyond a reasonable doubt that his
sentence imposed under the mandatory sentencing guidelines system
was harmless error. The Government contends that it did not have
to show harmless error beyond a reasonable doubt because
Rodriguez-Cardenas is alleging a non-constitutional error.
The court has determined that the Government must prove
harmless error beyond a reasonable doubt. United States v.
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). The Government
has failed to carry its burden of proof. Although it does not
appear that the district court would have been inclined to impose
a lesser sentence, based on its limited remarks, it cannot be
determined beyond a reasonable doubt that the sentence would have
been the same if the mandatory guidelines had not been
applicable. Therefore, Rodriguez-Cardenas’s sentence is vacated
No. 04-41560
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and the case is remanded to the district court for resentencing
in accord with United States v. Booker, 125 S. Ct. 738 (2005).
Rodriguez-Cardenas argues that 8 U.S.C. § 1326(b) is
unconstitutional and that Almendarez-Torres v. United States, 523
U.S. 224 (1998) was incorrectly decided in light of the holding
in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Rodriguez-Cardenas’s constitutional challenge to § 1326(b)
is foreclosed by Almendarez-Torres. Although Rodriguez-Cardenas
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. United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Rodriguez-Cardenas 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. The judgment of the district court is
affirmed with respect to this issue.
AFFIRMED IN PART, SENTENCE VACATED, AND CASE REMANDED FOR
RESENTENCING