United States v. Peceno-Montanez

171 F. App'x 452

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 17, 2006
• Docket: 05-40020
• Status: Unpublished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 17, 2006

Charles R. Fulbruge III Clerk No. 05-40020 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARGARITO PECENO-MONTANEZ, also known as Margarito Piceno-Montanez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1414-ALL --------------------

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

Margarito Peceno-Montanez (Peceno) appeals the sentence

imposed following his guilty-plea conviction of reentry of a

deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). The

district court sentenced Peceno to 20 months of imprisonment, based

in part on a prior aggravated felony conviction.

Peceno contends that his sentence is illegal under United

States v. Booker, 125 S. Ct. 738 (2005), because it was imposed

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. pursuant to a mandatory application of the federal sentencing

guidelines. Peceno thus alleges a “Fanfan” error. See United

States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). In the

district court, Peceno objected to his sentence under Blakely v.

Washington, 542 U.S. 296 (2004), and the Government concedes that

the issue is preserved and that it is subject to review for

harmless error.

The Government has not carried its burden of showing beyond a

reasonable doubt that the district court’s error did not affect

Peceno’s sentence. See Walters, 418 F.3d at 464; United States v.

Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005). We therefore vacate

the sentence and remand for resentencing in accordance with Booker.

See Walters, 418 F.3d at 464; Pineiro, 410 F.3d at 285-86.

Peceno also argues that the district court erred when it

characterized his 2003 Texas felony conviction of simple possession

of a controlled substance as an aggravated felony and enhanced his

offense level by eight levels under U.S.S.G. § 2L1.2(b)(1)(C). In

United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.

1997), this court held that a state conviction is an “aggravated

felony” pursuant to U.S.S.G. § 2L1.2(b) if the offense was

punishable under the Controlled Substances Act and a felony under

applicable state law. Hinojosa-Lopez, 130 F.3d at 693. Peceno

concedes that his conviction of simple possession of rock cocaine

was a felony under Texas law. Also, the Controlled Substances Act

criminalizes possession of a controlled substance. 21 U.S.C.

2 § 844(a). Peceno’s prior conviction therefore is an aggravated

felony that warrants the U.S.S.G. § 2L1.2(b)(1)(C) eight-level

offense level increase. Hinojosa-Lopez, 130 F.3d at 694; see also

United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001).

Peceno recognizes this court’s prior decisions, but he argues

that this circuit’s precedent is inconsistent with the Supreme

Court’s analysis set forth in Jerome v. United States, 318 U.S. 101

(1943). Jerome did not involve interpretation of the Guidelines.

Also, Jerome, a 1943 decision, is not “an intervening Supreme Court

case” that explicitly or implicitly overruled Hinojosa-Lopez.

Thus, this court is bound by Hinojosa-Lopez, see Martin v.

Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001), and Jerome does

not affect the binding precedential value of Rivera and

Hinojosa-Lopez.

Peceno also argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b) are unconstitutional. Peceno’s

constitutional challenge to § 1326(b) is foreclosed by

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

Although Peceno 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). Peceno properly concedes that his argument is

3 foreclosed in light of Almendarez-Torres and circuit precedent, but

he raises it here to preserve it for further review.

Accordingly, the conviction is AFFIRMED. Peceno’s sentence is

VACATED, and the case is REMANDED for resentencing.