United States v. Martin-Parada

* 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 7, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41390
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
MARCO ANTONIO MARTIN-PARADA,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-659-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Marco Antonio Martin-Parada (Martin) appeals his sentence following his guilty plea
conviction for illegal reentry. He argues that the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). Martin’s constitutional challenge is foreclosed by Almendarez-Torres v. United States,

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523 U.S. 224, 235 (1998). Although Martin contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of
Apprendi, 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). Martin 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.
Martin also argues that the district court reversibly erred under United States v. Booker, 543
U.S. 220 (2005), by sentencing him pursuant to a mandatory application of the Sentencing
Guidelines. The Government concedes that Martin has preserved this issue for appeal. The
Government, however, has not shown beyond a reasonable doubt that the error was harmless. See
United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Accordingly, Martin’s sentence is
VACATED, and this case is REMANDED for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.

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