United States v. Medina-Zavala

* 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this opinion should not be published and is not precedent except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 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41687
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ANDRES MEDINA-ZAVALA, also known as Wilson Paecido,
also known as Ever Quinones,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1172-ALL
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Luis Medina-Zavala (Medina) appeals his conviction and the
57-month sentence he received after he pleaded guilty to illegal
reentry. Medina argues that his sentence is illegal under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it
was imposed pursuant to a mandatory application of the federal
Sentencing Guidelines.
The erroneous application of the Guidelines as mandatory is
technically a “Fanfan error.” United States v. Martinez-Lugo,

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No. 04-41687
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411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464
(2005); see Booker, 125 S. Ct. at 750, 768-69. The Government
concedes that Medina preserved his Fanfan claim for appeal and
that the issue is reviewed for harmless error. See United States
v. Walters, 418 F.3d 461, 464 (5th Cir. 2005). The Government
also concedes that, given the district court’s acknowledgment
that Medina raised good points challenging his criminal history
computation and the court’s statement that it “got no
satisfaction” in sentencing Medina, the district court’s error in
sentencing Medina under mandatory Guidelines was not harmless.
Because the Government fails to meet its burden of showing that
the district court’s error was harmless beyond a reasonable
doubt, we vacate the sentence and remand the case for
resentencing in accordance with Booker.
Medina also argues 8 U.S.C. § 1326 is unconstitutional. As
he concedes, this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), which this court must follow
“unless and until the Supreme Court itself determines to overrule
it.” United States v. Izaguirre-Flores, 405 F.3d 270, 277-78
(5th Cir.) (quotation marks omitted), cert. denied, 126 S. Ct.
253 (2005). The judgment of conviction is affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.

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