USA v. Maldonado-Cruz

Filing 920060213

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 13, 2006 Charles R. Fulbruge III Clerk No. 05-40118 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RAUL MALDONADO-CRUZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1659-1 -------------------Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges. PER CURIAM:* Raul Maldonado-Cruz (Maldonado) appeals his guilty-plea conviction and 57-month sentence for being presented in the United States following deportation. Maldonado argues that

8 U.S.C. § 1326(b) is unconstitutional because it treats prior felony and aggravated felony convictions as sentencing factors. Maldonado's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Maldonado contends that Almendarez-Torres was

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40118 -2incorrectly 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). Maldonado 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. Maldonado also contends that the district court erred in sentencing him pursuant to the mandatory guideline regime held unconstitutional in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 764-65 (2005). The sentencing transcript is devoid

of 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). Conviction AFFIRMED. The case is REMANDED for See United

reconsideration and for resentencing if the district court decides appropriate.