United States v. Felix-Salas

170 F. App'x 312

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 3, 2006

Charles R. Fulbruge III Clerk No. 04-41606 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BONIFACIO FELIX-SALAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1357-ALL --------------------

Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

Bonifacio Felix-Salas (Felix) appeals his guilty-plea

conviction and 30-month sentence for being found in the United

States following deportation. Felix argues that 8 U.S.C. § 1326(b)

is unconstitutional because it treats prior felony and aggravated

felony convictions as sentencing factors. Felix’s constitutional

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

523 U.S. 224, 235 (1998). Although Felix contends that

Almendarez-Torres was incorrectly decided and that a majority of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Felix 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.

Felix also contends that the district court erred in

sentencing him pursuant to the mandatory guidelines regime held

unconstitutional in United States v. Booker, 543 U.S. 220, 125

S. Ct. 738, 764-65 (2005). The sentencing transcript is devoid of

evidence that the district court would have imposed the same

sentence under an advisory regime, and, therefore, the Government

has not borne its burden of establishing beyond a reasonable doubt

that the district court’s error was harmless. See United States v.

Walters, 418 F.3d 461, 464 (5th Cir. 2005).

CONVICTION AFFIRMED; VACATED AND REMANDED FOR RESENTENCING.