USA v. Galan-De La Torre

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. 04-41460 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PEDRO ALONSO GALAN-DE LA TORRE, also known as Fernando GomezTorres, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-302-ALL -------------------Before JOLLY, DAVIS, and OWEN, Circuit Judges. PER CURIAM:* Pedro Alonso Galan-De La Torre appeals his conviction and sentence for illegal reentry. Galan challenges the

constitutionality of 8 U.S.C. § 1326(b)(1), (2) and, additionally, the district court's application of the mandatory Sentencing Guidelines. Galan's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Galan contends that Almendarez-Torres was incorrectly 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41460 -2decided 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). Galan 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. Galan also contends that the district court erred in sentencing him pursuant to the mandatory Guidelines regime held unconstitutional in United States v. Booker, 125 S. Ct. 738, 764-65 (2005). The Government concedes that Galan has preserved The sentencing transcript is devoid of

his claim of error.

evidence that the district court would have imposed the same sentence under an advisory regime, and, therefore, the Government has not borne its burden of establishing beyond a reasonable doubt that the district court's error was harmless. States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005). See United Thus,

Galan's sentence is VACATED, and the case is REMANDED for further proceedings. See id. at 466.