United States v. Gonzalez-Pardo

United States Court of Appeals

Fifth Circuit F I L E D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III

Clerk

No. 04-41141 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus JOSE NATIVIDAD GONZALEZ-PARDO,

Defendant-Appellant.

--------------------

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-377-ALL --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Jose Natividad Gonzalez-Pardo appeals the sentence imposed following his guilty-plea conviction of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The district court sentenced Gonzalez to 15 months of imprisonment, based in part on a prior illegal reentry conviction.

Gonzalez contends that his sentence is illegal under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it was imposed pursuant to a mandatory application of the United

No. 04-41141 -2-

States Sentencing Guidelines. Gonzalez thus alleges a “Fanfan” error. See United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). In the district court, Gonzalez 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 Gonzalez’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.

Gonzalez also contends that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. Gonzalez’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Gonzalez 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). Gonzalez properly concedes that his argument is foreclosed in light of Almendarez-Torres and

No. 04-41141 -3- circuit precedent, but he raises it here to preserve it for further review. Accordingly, the judgment of conviction is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.