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this opinion should not be published and is not precedent except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

May 10, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-41573

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERARDO NAPOLEON MARTINEZ-CASARES,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(7:04-CR-431-1)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Gerardo Napoleon Martinez-Casares appeals his guilty-plea

conviction and sentence for illegal reentry following deportation,

in violation of 8 U.S.C. § 1326. He presents two claims.

First, he contends the district court reversibly erred when it

sentenced him pursuant to the mandatory Sentencing Guidelines held

unconstitutional in United States v. Booker, 543 U.S. 220 (2005)

(Fanfan claim). In this regard, Martinez-Casares’ being sentenced

pursuant to a mandatory system constituted error. See United
2

States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert.

denied, 126 S. Ct. 267 (2005). Because he preserved his Fanfan

claim in district court by objecting based on Blakely v.

Washington, 542 U.S. 296 (2004), we review for harmless error.

United States v. Rodriguez-Mesa, ___ F.3d ___, No. 04-41757, 2006

WL 633280, at *5-6 (5th Cir. 15 Mar 2006). The Government bears

the burden of proving beyond a reasonable doubt the district court

would not have sentenced Martinez-Casares differently under an

advisory system. See United States v. Walters, 418 F.3d 461, 464

(5th Cir. 2005).

The sentencing transcript gives no indication whether the

court would have imposed the same sentence had the Guidelines been

advisory. Further, contrary to the Government’s claim, that the

sentence may be reasonable does not demonstrate the district court

would have imposed the same sentence had it not been bound by the

Guidelines. See id. at 464-65. Moreover, the court’s granting a

downward departure alone does not prove beyond a reasonable doubt

the error did not affect Martinez-Casares’ sentence. See United

States v. Garza, 429 F.3d 165, 171 (5th Cir. 2005), cert. denied,

126 S. Ct. 1444 (2006). Therefore, we vacate Martinez-Casares’

sentence and remand for resentencing.

Martinez-Casares also challenges the constitutionality of 

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

convictions as sentencing factors rather than elements of the
3

offense that must be found by a jury in the light of Apprendi v.

New Jersey, 530 U.S. 466 (2000). This challenge is foreclosed by

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

Although Martinez-Casares contends Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court would

overrule it in the light of Apprendi, we have repeatedly rejected

such claims 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). Martinez-Casares concedes

this claim is foreclosed by Almendarez-Torres and circuit

precedent; he raises it only to preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING