United States v. Duenas-Aleman

* 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this opinion should not be published and is not precedent except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
February 9, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41554
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS MANUEL DUENAS-ALEMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-657-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Luis Manuel Duenas-Aleman (“Duenas”) appeals his sentence
from a guilty-plea conviction for reentry of a deported alien, in
violation of 8 U.S.C. § 1326. Duenas argues that his sentence
should be vacated and remanded because the district court
sentenced him under the mandatory Guidelines scheme held
unconstitutional in United States v. Booker,543 U.S. 220 (2005).
Because the district court sentenced Duenas under a
mandatory Guidelines regime, it committed Fanfan error. See

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No. 04-41554
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United States v. Valenzuela-Quevado, 407 F.3d 728, 733 (5th
Cir.), cert. denied, 126 S. Ct. 267 (2005); see also United
States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005)(discussing
the difference between Sixth Amendment Booker error and Fanfan
error). “[I]f either the Sixth Amendment issue presented in
Booker or the issue presented in Fanfan is preserved in the
district court by an objection, we will ordinarily vacate the
sentence and remand, unless we can say the error is harmless
under Rule 52(a) of the Federal Rules of Criminal Procedure.”
United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005)
(internal quotation marks and citation omitted). The Government
concedes that Duenas’s objection on the basis of Blakely v.
Washington, 542 U.S. 296 (2004), was sufficient to preserve his
Fanfan claim.
We conclude that the Government has not met its burden of
showing beyond a reasonable doubt that the district court would
have imposed the same sentence absent the error. See Pineiro,
410 F.3d at 286; United States v. Garza, 429 F.3d 165, 170-71
(5th Cir. 2005). We therefore VACATE Duenas’s sentence and
REMAND for re-sentencing.
Duenas also challenges the constitutionality of 8 U.S.C.
§ 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Duenas contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule

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No. 04-41554
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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). Duenas 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. Accordingly, Duenas’s conviction is AFFIRMED.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.

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