United States v. Mora-Martinez

172 F. App'x 53

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 19, 2006

Charles R. Fulbruge III Clerk No. 04-40913 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO MORA-MARTINEZ, also known as Antonio Martinez-Mora, also known as Jose Ruiz-Garcia, also known as Alandro Mendez, also known a Ruperto Ontiveros,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-93-ALL --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Antonio Mora-Martinez (A.K.A. “Ruiz”) appeals his 84-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).

Ruiz argues for the first time on appeal that the district court

erred when it enhanced his base offense level by 16 levels

because his prior Texas conviction for burglary of a habitation

does not qualify as a crime of violence for purposes of U.S.S.G.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40913 -2-

§ 2L1.2(b)(1)(A)(ii). The district court did not plainly err

when it determined that burglary of a habitation was a crime of

violence for purposes of assessing a 16-level increase under

§ 2L1.2(b)(1)(A)(ii). See United States v. Garcia-Mendez, 420

F.3d 454, 456-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398

(2006). Ruiz’s argument that Garcia-Mendez is contrary to this

court and the Supreme Court’s precedent is unavailing. See

United States v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999).

Ruiz 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). 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). Because

the sentencing transcript is silent regarding whether the

district court would have imposed the same sentence had the

Guidelines been advisory, the Government has failed to meet its

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.

Ruiz argues that the “felony” and “aggravated felony”

provisions of § 1326(b) are unconstitutional. Ruiz’s

constitutional challenge to § 1326(b) is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). No. 04-40913 -3-

Although Ruiz contends that Almendarez-Torres was incorrectly

decided and that a majority of 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). Ruiz 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, we AFFIRM Ruiz’s conviction, VACATE his

sentence, and REMAND the case for resentencing.