USA v. Mejia-Medina

Filing 920060221

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 21, 2006 Charles R. Fulbruge III Clerk No. 04-41283 Summary Calendar

UNITED STATES OF AMERICA Plaintiff - Appellee v. JOSE ROBERTO MEJIA-MEDINA Defendant - Appellant -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-357-1 -------------------Before KING, WIENER and DeMOSS, Circuit Judges. PER CURIAM:* Jose Roberto Mejia-Medina (Mejia) appeals his sentence following his guilty plea conviction for illegal reentry. Mejia

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). Mejia's

constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Mejia contends

that Almendarez-Torres was incorrectly decided and that a

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

No. 04-41283 -2majority 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). Mejia 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. Mejia also argues that the district court reversibly erred under United States v. Booker, 543 U.S. 220 (2005), by sentencing him pursuant to a mandatory application of the federal Sentencing Guidelines. The Government concedes that Mejia has preserved The Government, however, has not shown See

this issue for appeal.

beyond a reasonable doubt that the error was harmless.

United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Accordingly, Mejia's sentence is VACATED, and this case is REMANDED for resentencing. CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.