USA v. Galvan-Mariques
Filing
920060307
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 7, 2006 Charles R. Fulbruge III Clerk No. 04-41513 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NORBERTO GALVAN-MARIQUES, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-960-ALL -------------------Before SMITH, GARZA, and PRADO, Circuit Judges. PER CURIAM:* Norberto Galvan-Mariques (Galvan) appeals his guilty-plea conviction and 27-month prison sentence for illegally re-entering the United States after deportation, in violation of 8 U.S.C. § 1326. Galvan argues that, under United States v. Booker, 543 U.S. 220 (2005), the district court erred when it sentenced him pursuant to the pre-Booker mandatory sentencing guidelines regime. He is correct. See United States v. Valenzuela-Quevedo,
407 F.3d 728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41513 -2(2005). By stating that a harmless-error standard of review
applies to this "Fanfan" challenge, the Government concedes that Galvan preserved the challenge for appellate review. We review a
preserved challenge to the mandatory application of the Sentencing Guidelines for harmless error, and the Government bears the burden of showing harmlessness. United States v. Before an error
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).
can be held harmless, the Government must "point to . . . record evidence that would prove beyond a reasonable doubt that the district court would not have sentenced [the defendant] different had it acted under an advisory Guidelines regime." v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005). United States
Because the
Government has not met this burden, we vacate Galvan's sentence and remand for resentencing. Galvan's constitutional challenge to the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Galvan contends that Almendarez-Torres was
incorrectly decided, we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Galvan 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. We affirm Galvan's conviction.
SENTENCE VACATED AND REMANDED; CONVICTION AFFIRMED.
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