United States v. Gomez-Morales

169 F. App'x 907

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 5, 2006

Charles R. Fulbruge III Clerk No. 05-40149 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GOMEZ-MORALES, also known as Elias Ramirez-Morales, also known as Juan Gonzalez-Morales,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-441-ALL --------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

Juan Gomez-Morales appeals his 77-month sentence for being

an alien unlawfully found in the United States after deportation,

in violation of 8 U.S.C. § 1326(a) and (b). Gomez-Morales argues

that his sentence must be vacated and his case remanded for

resentencing because the district court committed reversible

error by sentencing him pursuant to a mandatory Sentencing

Guidelines regime in light of United States v. Booker, 543 U.S.

220 (2005). He preserved this contention in the district court.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40149 -2-

The district court’s sentence pursuant to a mandatory

Guidelines scheme constitutes Fanfan error. See United States v.

Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). The Government

thus bears the burden of proving beyond a reasonable doubt that

the district court would have imposed the same sentence had the

Guidelines been advisory only. See id. at 464. If the

Government cannot show that the error was harmless, we ordinarily

will vacate and remand for resentencing. Id. at 463.

The sentencing transcript is silent with regard to whether

the district court would have imposed the same sentence had the

Guidelines been advisory and the Government so concedes. The

Government cannot meet its burden. See id. at 464-66. Because

the Fanfan error requires remand for resentencing, we need not

address Gomez-Morales’s remaining challenge to his sentence. See

United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

Accordingly, we vacate Gomez-Morales’s sentence and remand the

case for resentencing.

Gomez-Morales also challenges the constitutionality of

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). Gomez-Morales’s constitutional

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

523 U.S. 224, 235 (1998). Although Gomez-Morales contends that

Almendarez-Torres was incorrectly decided and that a majority of No. 05-40149 -3-

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).

Gomez-Morales 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. Accordingly,

Gomez-Morales’s conviction is affirmed.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.