United States v. Navarette-Jacinto

168 F. App'x 585

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 3, 2006
• Docket: 04-41023
• Status: Unpublished

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. 04-41023 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE NAVARETTE-JACINTO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-380-1 --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Jose Navarette-Jacinto appeals his guilty-plea conviction

and sentence for illegal reentry into the United States following

deportation. He argues that the district court committed

reversible error under United States v. Booker, 125 S. Ct. 738

(2005), by sentencing him pursuant to a mandatory application of

the guidelines. As the Government concedes, Navarette preserved

this issue for review by raising an objection based upon Blakely

v. Washington, 542 U.S. 296 (2004), in the district court. See

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41023 -2-

United States v. Walters, 418 F.3d 461, 462-63 (5th Cir. 2005).

Accordingly, the question before us “is whether the government

has met its burden to show harmless error beyond a reasonable

doubt.” Id. at 464.

The district court erred by sentencing Navarette under the

mistaken belief that the guidelines were mandatory. See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert.

denied, 126 S. Ct. 267 (2005). The district court sentenced

Navarette at the low end of the guidelines range, and nothing in

the record indicates what sentence it would have imposed had it

known that the guidelines were advisory. In these circumstances,

the Government has not met its “arduous burden” of showing that

the error was harmless. United States v. Garza, 429 F.3d 165,

170 (5th Cir. 2005) (internal quotation marks omitted).

Accordingly, we vacate Navarette’s sentence and remand to the

district court for resentencing.

Navarette’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Navarette 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). Navarette properly concedes No. 04-41023 -3-

that his argument is foreclosed in light of Almendarez-Torres and

circuit precedent, but he raises it here to preserve it for

further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.