United States v. Villela-Espinosa

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 17, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 04-41282
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER VILLELA-ESPINOSA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-693-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Javier Villela-Espinosa appeals his conviction and sentence
for illegal reentry following deportation. Villela claims the
district court committed reversible error under United States v.
Booker, 543 U.S. 220 (2005), by sentencing him pursuant to a
mandatory application of the Sentencing Guidelines (Fanfan error).
The Government concedes that Villela has preserved this issue for

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appeal. Such error is not structural. United States v. Martinez-
Lugo, 411 F.3d 597, 601 (5th Cir. 2005).
On the other hand, the Government has not shown beyond a
reasonable doubt that the error was harmless. See United States v.
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Accordingly,
Villela’s sentence is vacated, and this case is remanded for
resentencing.
Villela also asserts the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional
in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Villela’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Villela contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule it
in the light of Apprendi, we have repeatedly rejected such
assertions 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). Villela concedes his
assertion is foreclosed in the light of Almendarez-Torres and
circuit precedent; he raises it to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING

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