United States v. Cruz

170 F. App'x 339

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 9, 2006

Charles R. Fulbruge III Clerk No. 04-40958 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEONARDO ENRIQUE CRUZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (1:04-CR-152-ALL)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Leonardo Enrique Cruz appeals his guilty-plea conviction and

sentence for being present in the United States following

deportation. Cruz claims that the district court erred in applying

Sentencing Guidelines § 2L1.2(b)(1)(A)(vii) because transportation

of illegal aliens is not “alien smuggling”. Cruz concedes this

claim is foreclosed by United States v. Solis-Campozano, 312 F.3d

164, 167-68 (5th Cir. 2002), which held “alien smuggling offense”

includes the offense of transporting aliens within the United

States. He raises this issue to preserve it for further review.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Cruz also claims the district court reversibly erred under

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005) by

sentencing him pursuant to a mandatory application of the

sentencing guidelines. There was no “Booker” error (Sixth

Amendment violation) because the only enhancement to Cruz’s

sentence was for his prior conviction. See Booker, 125 S. Ct. at

756, 769. Nevertheless, the district court committed “Fanfan”

error by sentencing Cruz pursuant to a mandatory guidelines system.

See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).

A Fanfan error is not structural error. See United States v.

Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, 126 S.

Ct. 464 (2005).

The Government concedes that Cruz preserved his Fanfan claim.

Accordingly, we review for harmless error beyond a reasonable

doubt. See Walters, 418 F.3d at 464. There is no evidence in the

record that the district court would have imposed the same sentence

had the guidelines been advisory. Accordingly, we vacate the

sentence and remand for resentencing.

Cruz contends that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional

on their face, and as applied in his case, in the light of Apprendi

v. New Jersey, 530 U.S. 466 (2000). Cruz’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998). Although Cruz contends that Almendarez-

2 Torres was incorrectly decided and that a majority of the Supreme

Court would overrule it in the 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). Cruz

properly concedes that his claim is foreclosed; he raises it to

preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; AND REMANDED FOR

RESENTENCING