* 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this opinion should not be published and is not precedent except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 9, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41240

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GUADALUPE CERDA-TOVAR,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:04-CR-412-ALL

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

Before DAVIS, SMITH, and DENNIS, Circuit Judges. 

PER CURIAM:*

Jose Guadalupe Cerda-Tovar appeals his sentence after

pleading guilty to being found in the United States after a

previous deportation. In his brief, which was filed before the

Supreme Court’s decision in United States v. Booker, 125 S. Ct.

738 (2005), Cerda-Tovar argues, to preserve for further review,

that the viability of Almendarez-Torres v. United States,

523 U.S. 224 (1998), is in doubt given Apprendi v. New Jersey,

530 U.S. 466 (2000), and that, under the view now held by a
No. 04-41240

-2-

majority of the Supreme Court justices, the felony and aggravated

felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional. 

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90. We must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” United States v. Mancia-Perez,

331 F.3d 464, 470 (5th Cir.) (quotation marks and citation

omitted), cert. denied, 540 U.S. 935 (2003). Therefore, CerdaTovar’s argument regarding the viability of Almendarez-Torres

fails. See id.

Cerda-Tovar also argues that the Government correctly

conceded that constitutional error occurred under Booker and that

the Government has the burden of proving that the error was

harmless beyond a reasonable doubt. However, Cerda-Tovar asserts

that (1) the Booker error in this case is structural and not

susceptible to harmless-error analysis; (2) even if harmlesserror analysis is appropriate, the error is not harmless beyond a

reasonable doubt; and (3) application of a reasonableness

standard of review is not appropriate because that standard was

applicable to pre-Booker cases. 

Here, the only enhancements to Cerda-Tovar’s sentence were

based on his prior convictions. However, the district court

erred by imposing a sentence pursuant to a mandatory application
No. 04-41240

-3-

of the Sentencing Guidelines. See Booker, 125 S. Ct. at 750,

768-69. 

We review such error, assuming without deciding that it was

properly preserved, under the harmless-error standard. The

Government has carried its burden of showing that, even absent

the mandatory application of the guidelines, Cerda-Tovar’s

sentence would be the same. See United States v. Pineiro, 410

F.3d 282, 284 (5th Cir. 2005). Thus, the error is harmless in

light of the district court’s statement that it would impose the

same sentence. See United States v. Walters, 418 F.3d 461, 463

(5th Cir. 2005). The judgment of the district court is AFFIRMED.