United States v. Morales-Agustine

* 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this opinion should not be published and is not precedent except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 8, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41677
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS FRANCISCO MORALES-AGUSTINE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-921-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesus Francisco Morales-Agustine (Morales) appeals the 80-
month sentence imposed following his guilty-plea conviction of
illegal reentry into the United States after being deported.
Morales 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 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 a structural error. Id. However, the

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No. 04-41677
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Government concedes that the Fanfan error was preserved, so we
review for harmless error. See id. at 464. The Government has
failed to carry its burden of showing beyond a reasonable doubt
that the district court’s Fanfan error had no effect Morales’s
sentence. See id. We therefore vacate the sentence and remand
for resentencing in accordance with Booker. See id.
Morales contends that the sentence-increasing provisions of
8 U.S.C. § 1326(b) are unconstitutional and that this court
should remand his case 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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