United States v. Martin-Parada

169 F. App'x 882

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 7, 2006
• Docket: 04-41390
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 7, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-41390 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

versus

MARCO ANTONIO MARTIN-PARADA,

Defendant- Appellant.

------------------------------------------------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-659-ALL -------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

Marco Antonio Martin-Parada (Martin) appeals his sentence following his guilty plea

conviction for illegal reentry. He argues that the “felony” and “aggravated felony” provisions of

8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000). Martin’s constitutional challenge is foreclosed by Almendarez-Torres v. United States,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 523 U.S. 224, 235 (1998). Although Martin contends that Almendarez-Torres was incorrectly

decided and that a majority of t he 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). Martin 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.

Martin also argues that the district court reversibly erred under United States v. Booker, 543

U.S. 220 (2005), by sentencing him pursuant to a mandatory application of the Sentencing

Guidelines. The Government concedes that Martin has preserved this issue for appeal. The

Government, however, 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, Martin’s sentence is

VACATED, and this case is REMANDED for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.