United States v. Roman-Noyola

169 F. App'x 864

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 22, 2006

Charles R. Fulbruge III Clerk No. 05-40078 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ROMAN-NOYOLA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (5:04-CR-1348-ALL)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Roman-Noyola appeals the sentence imposed upon his

guilty-plea conviction for illegal reentry. See 8 U.S.C. § 1326.

Roman claims the district court reversibly erred under United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), by

sentencing him pursuant to a mandatory application of the

Sentencing Guidelines. There was no Booker error (Sixth-Amendment

violation) because the only enhancement to Roman’s sentence was for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. his prior conviction. See id., 125 S. Ct. at 756, 769. Instead,

the district court committed Fanfan error by sentencing Roman under

a mandatory guidelines scheme. See United States v. Walters, 418

F.3d 461, 463-64 (5th Cir. 2005).

The Government concedes Roman preserved his Fanfan claim. As

such, we review for harmless error. See id. at 464. This court

has rejected that Fanfan error is structural. See id. at 463.

The record does not show the district court would have imposed

the same sentence had the guidelines been advisory rather than

mandatory. The Government has not satisfied its burden of showing

the Fanfan error was harmless beyond a reasonable doubt. See id.

at 463-64. Accordingly, we vacate Roman’s sentence and remand for

resentencing in accordance with Booker.

Roman next asserts that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional

on their face, and as applied in his case, in the light of Apprendi

v. New Jersey, 530 U.S. 466 (2000). Roman’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998). Although Roman contends that case was

incorrectly decided and that a majority of the Supreme Court would

overrule it in the light of Apprendi, we have repeatedly rejected

such contentions on the basis that Almendarez-Torres remains

binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

2 Cir.), cert. denied, 126 S. Ct. 298 (2005). Roman concedes this

claim is foreclosed in the light of Almendarez-Torres and circuit

precedent; he raises it to preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING