UNITED STATES of America, Plaintiff-Appellee, v. Constantino PADRON-BALDERAS, Defendant-Appellant, 171 F. App'x 452
Opinion
PER CURIAM: Constantino Padron-Balderas (Padró
n) appeals his guilty-plea conviction and 60-month sentence for illegal reentry into the United States following deportation. Padrón claims that 8 U.S.C. § 1326(
b) is unconstitutional because it treats prior felony and aggravated felony convictions as sentencing factors. Padron’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Padrón contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Padrón properly concedes that his argument is foreclosed in the light of Almendarez-Torres and circuit precedent; he raises it to preserve it for further review. Padrón also contends that the district court erred in sentencing him under the mandatory guideline regime held unconstitutional in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Fanfan error).
Because Padrón preserved the issue in district court, the Government must show the Fanfan error was harmless beyond a reasonable doubt. See United States v. Walters, 418 F.3d 461, 463 (5th Cir.2005). The sentencing transcript is devoid of evidence that the district court would have imposed the same sentence under an advisory regime; therefore, the Government has not borne its burden. Id. CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING. 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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