United States v. Hernandez-Urbina

* 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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 8, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41518
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE HERNANDEZ-URBINA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
No. 5:04-CR-498-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Hernandez-Urbina appeals the 30-month sentence imposed
following his guilty-plea conviction of illegal reentry into the
United States after being deported. He contends that his sentence
is illegal under United States v. Booker, 543 U.S. 220 (2005),
because it was imposed pursuant to a mandatory application of the

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No. 04-41518
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United States Sentencing Guidelines. He thus alleges a “Fanfan”
error. See United States v. Walters, 418 F.3d 461, 463 (5th Cir.
2005). Fanfan error is not structural error, id., but the govern-
ment concedes that Fanfan error was preserved, so we review for
harmless error, see id. at 464.
The government fails to carry its burden of showing beyond a
reasonable doubt that the Fanfan error had no effect on Hernandez-
Urbina’s sentence. See id. We therefore vacate the sentence and
remand for resentencing in accordance with Booker. See id.
Hernandez-Urbina contends that the sentence-increasing provi-
sions of 8 U.S.C. § 1326(b) are unconstitutional and that this
court should remand for resentencing to no more than two years in
prison under 8 U.S.C. § 1326(a). As he concedes, this contention
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998).
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.

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