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this opinion should not be published and is not precedent except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

January 11, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-40006

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REYNALDO ENRIQUE LOPEZ-ZELADON,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-1408-ALL

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

Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Reynaldo Enrique Lopez-Zeladon (Lopez) appeals from his

conviction of illegal reentry following deportation.

Lopez challenges the constitutionality of 8 U.S.C.

§ 1326(b). His constitutional challenge is foreclosed by

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

Although Rodriguez 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
No. 05-40006

-2-

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). Lopez 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.

Lopez contends that the district court’s imposition of

sentence under the formerly mandatory Sentencing Guidelines

scheme constituted reversible error, pursuant to United States v.

Booker, 125 S. Ct. 738 (2005). Lopez further contends that the

Government cannot demonstrate that the district court’s error was

harmless beyond a reasonable doubt. The Government concedes that

error occurred, but it notes that the error was nonconstitutional

in nature, it and argues that the error was harmless. 

Because Lopez preserved his “Fanfan” challenge in the

district court by raising an objection based on Blakely v.

Washington, 124 S. Ct. 2531 (2004), we review for harmless error. 

United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). The

Government bears the burden of proving beyond a reasonable doubt

that the district court would not have sentenced Lopez

differently under an advisory guideline sentencing regime. See

id. at 464.

Although the district court sentenced Lopez to the low end

of the applicable, level-21, category-IV, sentencing range, its
No. 05-40006

-3-

comment that category III was fair, and its selection of a

sentence in the “overlap zone” of categories III and IV, suggests

that the court might have selected another sentence had the

guidelines been advisory. The Government has failed to

demonstrate beyond a reasonable doubt that the district court

would not have sentenced Lopez differently under an advisory

guidelines sentencing regime. See Walters, 418 F.3d at 464. The

Government thus has not carried its burden of showing harmless

error. See id. We therefore remand Lopez’s case to the district

court to determine whether resentencing is needed. 

AFFIRMED WITH REMAND FOR RECONSIDERATION OF THE SENTENCE.