United States v. Delgado-Castillo

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 10, 2006 Charles R. Fulbruge III Clerk No. 05-40016 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LEONARDO DELGADO-CASTILLO, also known as Juan Ruiz-Castillo, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1520-ALL -------------------- Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:* Leonardo Delgado-Castillo appeals his conviction and sentence for unlawful presence in the United States after deportation following an aggravated felony conviction. He raises three issues in this appeal.

First, Delgado-Castillo argues that his sentence is unconstitutional under United States v. Booker, 543 U.S. 220 (2005), because it was imposed pursuant to a mandatory application of the United States Sentencing Guidelines. He thus

No. 05-40016 -2- alleges a “Fanfan” error. See United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). Fanfan error is not a structural error. Id. However, the Government concedes that the Fanfan error was preserved, so we review for harmless error. See id. A sentence at the top of the guideline range alone is insufficient to establish that the Fanfan error was harmless.

See United States v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006).

The record fails to demonstrate beyond a reasonable doubt that the district court would have imposed the same sentence under the post-Booker advisory sentencing regime. See Walters, 418 F.3d at 464. We therefore vacate Delgado-Castillo’s sentence and remand for resentencing in accordance with Booker. See id. at 466.

Second, Delgado-Castillo argues that his base offense level was erroneously enhanced eight levels pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C). He contends that the enhancement was improper because his state felony conviction for simple possession of cocaine was a misdemeanor under federal law, not an “aggravated felony.” Delgado-Castillo acknowledges that this court’s decisions in United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001), and United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997), mandate the result reached by the district court; however, he contends that these holdings are contrary to the Supreme Court’s decision in Jerome v. United States, 318 U.S. 101, 104-07 (1943). Having preceded Hinojosa-Lopez, Jerome is not “an intervening Supreme Court case No. 05-40016 -3- explicitly or implicitly overruling that prior precedent.” See United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999).

Delgado-Castillo has not shown that the district court erred by classifying his possession conviction as an aggravated felony for purposes of the eight-level enhancement under § 2L1.2(b)(1)(C).

Third, Delgado-Castillo argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Delgado-Castillo’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Delgado-Castillo 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, 126 S.

Ct. 298 (2005). Delgado-Castillo 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.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.