Filed: Mar. 06, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 6, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-41279 Summary Calendar UNITED STATES OF AMERICA, Plaintiff- Appellee, versus JESUS GONZALEZ-SILVA, also known as Martin Garcia-Salaiza, Defendant- Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-847-ALL - Before BARKSDALE, STEWART and CLEMENT, Circuit Judges. PER CURIAM:*
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 6, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-41279 Summary Calendar UNITED STATES OF AMERICA, Plaintiff- Appellee, versus JESUS GONZALEZ-SILVA, also known as Martin Garcia-Salaiza, Defendant- Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-847-ALL - Before BARKSDALE, STEWART and CLEMENT, Circuit Judges. PER CURIAM:* ..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41279
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
JESUS GONZALEZ-SILVA, also known as Martin Garcia-Salaiza,
Defendant-
Appellant.
--------------------------------------------------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-847-ALL
--------------------------------------------------------------
Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Jesus Gonzalez-Silva appeals from his guilty-plea conviction and sentence for attempting to
illegally reenter the United States after having been previously removed. He was sentenced to 70
months of imprisonment and three years of supervised release. Gonzalez-Silva asserts that his
sentence
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
is invalid in light of United States v. Booker, 543 U.S. 220 (2005). Because the district court
sentenced Gonzalez-Silva under a mandatory guidelines regime, it committed a Fanfan error. See
United States v. Walters,
418 F.3d 461, 463-64 (5th Cir. 2005). Because the Government concedes
that Gonzalez-Silva preserved his Fanfan claim, this court reviews for harmless error. Id.; United
States v. Mares,
402 F.3d 511, 520 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005). Under this
standard of review, the Government bears the burden of proving beyond a reasonable doubt that the
district court would not have sentenced Gonzalez-Silva differently under an advisory guidelines
sentencing regime.
Walters, 418 F.3d at 464. The record contains no indication that the district
court would have imposed the same sentence absent the error. The Government thus cannot meet
its burden. Accordingly, Gonzalez-Silva’s sentence is vacated and the case is remanded for
resentencing.
Gonzalez-Silva’s constitutional challenge is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Gonzalez-Silva 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 binding. See United States v. Garza-Lopez,
410 F.3d
268, 276 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005). Gonzalez-Silva 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.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.
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