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this opinion should not be published and is not precedent except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

July 26, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-11493

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR ALBERTO PRIETO,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:04-CR-213-ALL

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

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Oscar Alberto Prieto (Prieto) appeals the sentence imposed

by the district court following his guilty plea to illegal

reentry after removal from the United States in violation of

8 U.S.C. § 1326(a) & (b)(2) and 6 U.S.C. §§ 202 and 557. 

In part, Prieto asserts that the district court erred when

it imposed an eight-level enhancement because he previously had

been convicted of an aggravated felony. This argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
No. 04-11493

-2-

(1998), which this court must follow "unless and until the

Supreme Court itself determines to overrule it.” United States

v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir. 2005)

(internal quotation marks and citation omitted). 

Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),

Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States

v. Booker, 125 S. Ct. 738 (2005), Prieto also argues that his

constitutional rights were violated because the guidelines in

effect when he was sentenced were mandatory and imposed binding

requirements on all sentencing judges. The Government agrees

that Prieto preserved the Booker error and that the district

court committed Booker error when it sentenced Prieto under

mandatory, rather than advisory, guidelines. 

When a Booker error is preserved, this court “will

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

harmless. United States v. Pineiro, ___ F.3d ___, No. 03-30437,

2005 WL 1189713 at *2 (5th Cir. May 20, 2005) (internal quotation

marks and citation omitted). As the Government concedes that it

cannot satisfy its burden of proof under the harmless error

standard, Prieto’s sentence must be vacated, and this case must

be remanded for resentencing in light of Booker and United States

v. Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517). 

We do not reach Prieto’s contention that a greater sentence

at resentencing would implicate due process and ex post facto
No. 04-11493

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concerns. Because we remand this matter to the district court

for resentencing in light of Booker and Mares, such an argument

is premature and need not be addressed. Amar v. Whitley, 100

F.3d 22, 23 (5th Cir. 1996) (noting that a federal court lacks

jurisdiction and the judicial resources to issue advisory

opinions); Matter of Talbott Big Foot, Inc., 924 F.2d 85, 87 (5th

Cir. 1991) (stating that the court does not give opinions upon

moot questions, abstract propositions, or rules of law not at

issue). We leave to the district court’s discretion whether it

will impose the same sentence with the same departures or

enhancements.

VACATED AND REMANDED FOR RESENTENCING.