USA vs. Duenas-Aleman, (5th Cir. 2006)

Docket Number: 04-41554

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United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

February 9, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 04-41554

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS MANUEL DUENAS-ALEMAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-657-ALL

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:* Luis Manuel Duenas-Aleman ("Duenas") appeals his sentence from a guilty-plea conviction for reentry of a deported alien, in violation of 8 U.S.C. § 1326. Duenas argues 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 (2005). Because the district court sentenced Duenas under a mandatory Guidelines regime, it committed Fanfan error. See * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. United States v. Valenzuela-Quevado, 407 F.3d 728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005); see also United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005)(discussing the difference between Sixth Amendment Booker error and Fanfan error). "[I]f either the Sixth Amendment issue presented in Booker or the issue presented in Fanfan is preserved in the district court by an objection, we will ordinarily vacate the sentence and remand, unless we can say the error is harmless under Rule 52(a) of the Federal Rules of Criminal Procedure." United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005) (internal quotation marks and citation omitted). The Government concedes that Duenas's objection on the basis of Blakely v. Washington,542 U.S. 296 (2004), was sufficient to preserve his Fanfan claim.

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 Pineiro, 410 F.3d at 286; United States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005). We therefore VACATE Duenas's sentence and REMAND for re-sentencing.

Duenas also challenges the constitutionality of 8 U.S.C. § 1326(b). His constitutional challenge is foreclosed by Almendarez-Torres v. United States,523 U.S. 224, 235 (1998).

Although Duenas 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). Duenas 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. Accordingly, Duenas's conviction is AFFIRMED.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.