United States v. Villeda-Tavera

184 F. App'x 435

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 9, 2006
• Docket: 05-40132
• Status: Unpublished

Opinion

PER CURIAM: *

Saul Villeda-Tavera (Villeda) appeals following his guilty-plea conviction for being found in the United States after a previous deportation, in violation of 8 U.S.C. § 1326. Villeda contends that his sentence should be vacated and remanded because the district court sentenced him under the mandatory guidelines scheme held unconstitutional in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

As the district court sentenced Villeda under a mandatory guidelines regime, it committed Fanfan error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 267, 163 L.Ed.2d 240 (2005). When a defendant has preserved a Fanfan challenge in the district court, this court reviews for harmless error. United States v. Walters, 418 F.3d 461, 463 (5th Cir.2005); Valenzuela-Quevedo, 407 F.3d at 732-33. Villeda’s Fanfan challenge was preserved by his objection in the district court under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See United States v. Reyes-Celestino, 443 F.3d 451, 453 (5th Cir.2006).

We conclude that the Government has not met its burden of showing beyond a reasonable doubt that the district court would have imposed the same sentence absent the error. See id.; United States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005), cert. denied, — U.S. -, 126 S.Ct. 1444, 164 L.Ed.2d 143 (2006). We therefore vacate Villeda’s sentence and remand for resentencing.

Villeda also challenges the constitutionality of § 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Villeda’s 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 Villeda contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi, 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, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Villeda 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. Therefore, Villeda’s conviction is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

* 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.