United States v. Paredes-Chavez

169 F. App'x 852

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 3, 2006
• Docket: 04-41416
• Status: Unpublished

Opinion

PER CURIAM: *

Fidel Paredes-Chavez (Paredes) appeals from his sentence imposed pursuant to his guilty plea to illegal reentry after deportation. Paredes contends that his sentence is unconstitutional under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because he was sen- fenced pursuant to the mandatory Sentencing Guidelines regime.

The district court stated, however, that if the Guidelines had not applied, the court would have imposed the same sentence that Paredes received. Therefore, the Government has carried its burden of establishing that the sentencing error in Paredes’s case was harmless beyond a reasonable doubt. See United States v. Garza, 429 F.3d 165, 170 (5th Cir.2005); United States v. Walters, 418 F.3d 461, 464-66 (5th Cir.2005).

Paredes also challenges the constitutionality of 8 U.S.C. § 1326(b). His constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Paredes 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Paredes 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.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.