USA v. Nunez-Munoz

Filing 920060222

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 22, 2006 Charles R. Fulbruge III Clerk No. 04-41374 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NICOLAS NUNEZ-MUNOZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-547-ALL -------------------Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. PER CURIAM:* Nicolas Nunez-Munoz (Nunez) appeals his conviction and sentence for illegal reentry after a previous deportation. Nunez

argues that the district reversibly erred under United States v. Booker, 125 S. Ct. 738 (2005), by sentencing him pursuant to a mandatory application of the Sentencing Guidelines. There was no "Booker" error or Sixth Amendment violation because the only enhancement to Nunez's sentence was for his prior conviction. See Booker, 125 S. Ct. at 756, 769.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41374 -2Nevertheless, the district court committed "Fanfan" error by sentencing Nunez pursuant to a mandatory guidelines scheme. See

United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). We have previously rejected Nunez's claim that such error is "`structural' in nature." See id. at 463.

The Government concedes that Nunez preserved his Fanfan argument. error. As such, this court reviews the claim for harmless There is no indication in the record

See id. at 464.

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. Nunez next argues that the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional on their face and as applied in his case in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Nunez's

constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Nunez 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). Nunez properly concedes that his

argument is foreclosed in light of Almendarez-Torres and circuit

No. 04-41374 -3precedent, but he raises it here to preserve it for further review. Accordingly, Nunez's conviction is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.