United States v. Archundia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2006
Charles R. Fulbruge III
Clerk
No. 04-21010
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER ARCHUNDIA,
also known as Francisco Archundia,
also known as Francisco Javier Archundia-Mendoza,
also known as Francisco Javier Archundia-Bustos,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 4:04-CR-342-ALL
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Before SMITH, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Francisco Archundia appeals his conviction of and sentence for
illegal reentry following deportation. He 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 appli-
cation of the sentencing guidelines. The government argues that
*
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opinion should not be published and is not precedent except under the limited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. 04-21010
-2-
Archundia has not preserved this issue for appeal, but because the
district court, sua sponte, addressed the issue of the effect of
Blakely v. Washington, 542 U.S. 296 (2004), on the sentencing
guidelines, we review the district court’s “Fanfan” error under the
harmless error standard of review. See United States v. Rodriguez,
15 F.3d 408, 414 (5th Cir. 1994) (noting that the purpose of an
objection is to bring an issue to the attention of the district
court so that it “may correct itself and thus, obviate the need for
[this court’s] review”)(internal quotation marks and citation omit-
ted)); see United States v. Rodriguez-Mesa, 443 F.3d 397, 404 (5th
Cir. 2006) (stating that a Blakely objection in the district court
preserves a Fanfan error for appeal).
The government has not shown beyond a reasonable doubt that
the error was harmless. See United States v. Walters, 418 F.3d
461, 463-64 (5th Cir. 2005). Accordingly, Archundia’s sentence is
vacated, and this case is remanded for resentencing.
Archundia argues that the district court erred in ordering, as
a condition of supervised release, that he cooperate with collec-
tion of a DNA sample. We determined that this issue is not ripe
for review in United States v. Riascos-Cuenu, 428 F.3d 1100, 1102
(5th Cir. 2005), petition for cert. filed, (Jan. 9, 2006) (No.
05-8662). Accordingly, the appeal of this issue is dismissed for
want of jurisdiction.
Archundia’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
No. 04-21010
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(1998). Although Archundia contends that Almendarez-Torres was in-
correctly 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). Archundia 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.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING; APPEAL DISMISSED IN PART.