United States v. Cerda-Tovar

153 F. App'x 303

Opinion

PER CURIAM:

*

Jose Guadalupe Cerda-Tovar appeals his sentence after pleading guilty to being found in the United States after a previous deportation. In his brief, which was filed before the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Cerda-Tovar argues, to preserve for further review, that the viability of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is in doubt given Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that, under the view now held by a majority of the Supreme Court justices, the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional.

Apprendi did not overrule AlmendarezTorres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348. We must follow the precedent set in Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.) (quotation marks and citation omitted), cert. denied, 540 U.S. 935, 124 S.Ct. 358, 157 L.Ed.2d 245 (2003). Therefore, Cerda-Tovar’s argument regarding the viability of Almendarez-Torres fails. See id.

Cerda-Tovar also argues that the Government correctly conceded that constitutional error occurred under Booker and that the Government has the burden of proving that the error was harmless beyond a reasonable doubt. However, Cerda-Tovar asserts that (1) the Booker error in this case is structural and not susceptible to harmless-error analysis; (2) even if harmless-error analysis is appropriate, the error is not harmless beyond a reasonable doubt; and (3) application of a reasonableness standard of review is not appropriate because that standard was applicable to pre-Booker cases.

Here, the only enhancements to Cerda-Tovar’s sentence were based on his prior convictions. However, the district court erred by imposing a sentence pursuant to a mandatory application of the Sentencing Guidelines. See Booker, 125 S.Ct. at 750, 768-69.

We review such error, assuming without deciding that it was properly preserved, under the harmless-error standard. The Government has carried its burden of showing that, even absent the mandatory application of the guidelines, Cerda-Tovar’s sentence would be the same. See United States v. Pineiro, 410 F.3d 282, 284 (5th Cir.2005). Thus, the error is harmless in light of the district court’s statement that it would impose the same sentence. See United States v. Walters, 418 F.3d 461, 463 (5th Cir.2005). The judgment of the district court is AFFIRMED.

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.