United States v. Felix-Salas

* 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opinion should not be published and is not precedent except under the limited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 3, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41606
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BONIFACIO FELIX-SALAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1357-ALL
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Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Bonifacio Felix-Salas (Felix) appeals his guilty-plea
conviction and 30-month sentence for being found in the United
States following deportation. Felix argues that 8 U.S.C. § 1326(b)
is unconstitutional because it treats prior felony and aggravated
felony convictions as sentencing factors. Felix’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Felix contends that
Almendarez-Torres was incorrectly decided and that a majority of

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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). Felix 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.
Felix also contends that the district court erred in
sentencing him pursuant to the mandatory guidelines 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. See United States v.
Walters, 418 F.3d 461, 464 (5th Cir. 2005).
CONVICTION AFFIRMED; VACATED AND REMANDED FOR RESENTENCING.

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