United States v. Torres-Villa

* 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opinion should not be published and is not precedent except under the limited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 16, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41379
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CELESTINO TORRES-VILLA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-712-ALL
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Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Celestino Torres-Villa (Torres) pleaded guilty to unlawfully
re-entering the United States in violation of 8 U.S.C. § 1326(a).
Citing United States v. Booker, 543 U.S. 220 (2005), Torres first
challenges the district court’s imposition of a 16-level
enhancement for a prior felony conviction pursuant to U.S.S.G.
§ 2L1.2. As the enhancement of Torres’s sentence was based on a
prior conviction, there was no Sixth Amendment Booker error.
Nevertheless, in light of Booker, the application of the Guidelines

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as mandatory was error, which this court has termed “Fanfan” error.
See United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).
We review for harmless error, and we reject Torres’s contention
that “Fanfan” error is structural and, therefore, insusceptible of
harmless error analysis. See id. at 463-64.
The Government has failed to carry its burden of showing
harmless error as it has failed to point to anything in the record
that demonstrates “beyond a reasonable doubt that the district
court would not have sentenced [Torres] differently had it acted
under an advisory Guidelines regime.” United States v. Akpan,
407 F.3d 360, 376-77 (5th Cir. 2005). The Government’s assertions
that the error was harmless because the sentence was properly
calculated under the Guidelines, the sentence was reasonable in
light of 18 U.S.C. § 3553(a), and the district court indicated no
dissatisfaction with the Guidelines, are insufficient to carry the
Government’s burden. See Walters, 418 F.3d at 465-66; United
States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).
Torres also asserts that the enhanced penalty provisions of
8 U.S.C. § 1362(b) are unconstitutional. Torres’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Torres contends that
Almendarez-Torres was incorrectly decided and that a majority of
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

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binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th
Cir.), cert. denied, 126 S. Ct. 298 (2005). Torres 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.
For the foregoing reasons, we AFFIRM Torres’s conviction. We
VACATE his sentence and REMAND to the district court for re-
sentencing.

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