USA v. Alvarado-De Hoyos

Filing 920060302

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 2, 2006 Charles R. Fulbruge III Clerk No. 04-41578 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RICARDO MANUEL ALVARADO-DE HOYOS, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-507-ALL -------------------Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges. PER CURIAM:* Ricardo Manuel Alvarado-De Hoyos ("Alvarado") appeals his conviction and sentence for illegal reentry. Alvarado challenges

the constitutionality of 8 U.S.C. § 1326(b)(1)&(2) and, additionally, the district court's application of the mandatory Sentencing Guidelines. Alvarado's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Alvarado 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41578 -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). Alvarado 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. Alvarado 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 the error and admits that

it cannot carry its burden of establishing beyond a reasonable doubt that the error was harmless. 418 F.3d 461, 464 (5th Cir. 2005). See United States v. Walters, Thus, Alvarado's sentence is See

VACATED, and the case is REMANDED for further proceedings. id. at 466.

AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR FURTHER PROCEEDINGS.