USA v. Lopez-Nino

Filing 920060306

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 6, 2006 Charles R. Fulbruge III Clerk

No. 04-41309 Summary Calendar

UNITED STATES OF AMERICA, PlaintiffAppellee, versus ARTURO LOPEZ-NINO, DefendantAppellant. --------------------------------------------------------------Appeals from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-658-ALL --------------------------------------------------------------Before BARKSDALE, STEWART and CLEMENT, Circuit Judges. PER CURIAM:* Arturo Lopez-Nino appeals from his guilty-plea conviction for illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326. He 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, 125 S. Ct. 738 (2005).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

The district court committed "Fanfan" error by sentencing Lopez-Nino pursuant to a mandatory guidelines scheme. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Although Lopez-Nino contends that such error is structural, this argument is foreclosed by circuit precedent. See id. at 463. The Government concedes that Lopez-Nino preserved his Fanfan claim. As such, this court reviews the claim for harmless error. See id. at 464. There is no indication in the record that the district court would have imposed the same sentence had the guidelines been advisory rather than mandatory. Accordingly, we VACATE the sentence and REMAND for resentencing in accordance with Booker. Lopez-Nino 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 Lopez-Nino 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). Lopez-Nino properly concedes that his argument is foreclosed in light of AlmendarezTorres and circuit precedent, but he raises it here to preserve it for further review. Accordingly, Lopez-Nino's conviction is AFFIRMED. CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.