* 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this opinion should not be published and is not precedent except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

FILED

November 28, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20723

Summary Calendar

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ERNESTO JUAREZ-JIMENEZ, 

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CR-21-1

--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Ernesto Juarez-Jimenez appeals the sentence he received for

his conviction for illegal reentry into the United States following

deportation subsequent to an aggravated felony conviction. 

As an initial matter, this court must raise the issue of

mootness sua sponte because it is a threshold issue and implicates

Article III jurisdiction. See Bailey v. Southerland, 821 F.2d 277,

278 (5th Cir. 1987). According to the records of the Federal

Bureau of Prisons, Juarez-Jimenez was released from custody on

March 3, 2006. 
No. 04-20723

-2-

To the extent that Juarez-Jimenez appeals his conviction, his

appeal is not moot simply because his term of imprisonment has

expired. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). However,

because Juarez-Jimenez’s term of imprisonment has expired, JuarezJimenez’s appeal is moot to the extent that it challenges his

sentence of imprisonment. See United States v. Johnson, 529 U.S.

53, 60 (2000); United States v. Ramon, 320 F.3d 519, 519-20 (5th

Cir. 2003). Nevertheless, Juarez-Jimenez’s appeal is not moot to

the extent that it challenges the supervised release portion of his

sentence. See United States v. Lares-Meraz, 452 F.3d 352, 355 (5th

Cir. 2006). 

Juarez-Jimenez argues, in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), that the 30-month term of imprisonment imposed in

his case exceeds the statutory maximum sentence allowed for the

§ 1326(a) offense charged in his indictment. He challenges the

constitutionality of § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury. 

Juarez-Jimenez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although he 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.),
No. 04-20723

-3-

cert. denied, 126 S. Ct. 298 (2005). Juarez-Jimenez 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. 

Juarez-Jimenez renews his argument, preserved in the district

court, that in light of the Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296 (2004), his Sixth Amendment rights were

violated when the district court assessed an eight-level

enhancement under § 2L1.2(b)(1)(C). 

Where, as here, an error under United States v. Booker, 543

U.S. 220 (2005), has been preserved in the district court, we “will

ordinarily vacate the sentence and remand,” unless the error is

harmless.” United States v. Pineiro, 410 F.3d 282, 284 (5th Cir.

2005) (internal quotation marks and citation omitted). The

Government bears the burden of demonstrating that the error was

harmless beyond a reasonable doubt. Id. at 285. In order to carry

this burden, the Government must show that the Booker error did not

affect the sentence, i.e., it must show that the district court

would have imposed the same sentence absent the error. United

States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).

The Government concedes Booker error. However, it contends

that the error was harmless because it is clear beyond a reasonable

doubt that the district court would not have imposed a lesser

sentence if the Guidelines had been advisory rather than mandatory

at the time of Juarez-Jimenez’s sentencing. It notes that the
No. 04-20723

-4-

district court imposed a sentence at the top of the guideline range

and that the district court found the sentence adequately addressed

the sentencing objectives of punishment and deterrence. 

The imposition of the maximum sentence within the guideline

range alone is insufficient to establish that the Booker error was

harmless beyond a reasonable doubt. See United States v. Woods, 440

F.3d 255, 258-59 (5th Cir. 2006). In light of Woods, there is

nothing in the record which demonstrates beyond a reasonable doubt

that the district court would have imposed the same sentence under

the post-Booker advisory sentencing regime. 

Accordingly, the Government cannot meet its burden, and JuarezJimenez sentence is vacated and the case is remanded for

resentencing in accordance with Booker.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.