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this opinion should not be published and is not precedent except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

February 15, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41560

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS RODRIGUEZ-CARDENAS,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-897-ALL

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

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Luis Rodriguez-Cardenas appeals his guilty plea conviction

and sentence imposed for being an alien illegally present in the

United States following deportation. Rodriguez-Cardenas was

sentenced to a term of imprisonment of sixty-five months to be

followed by three years of supervised release. 

Rodriguez-Cardenas argues that the district court plainly

erred in enhancing his offense level by sixteen levels based on

his prior state court conviction for burglary of a habitation. 
No. 04-41560

-2-

He argues that his burglary conviction is not an enumerated crime

of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii) and that his

offense did not require proof of the element of use, attempted

use, or threatened use of physical force against the person of

another. This court rejected Rodriguez-Cardenas’s argument in

United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.

2005), which held that “‘burglary of a habitation’ is equivalent

to the enumerated [crime of violence] offense of ‘burglary of a

dwelling.’” The judgment of the district court is affirmed with

respect to this issue.

Rodriguez-Cardenas argues that the Government failed to

carry its burden of showing beyond a reasonable doubt that his

sentence imposed under the mandatory sentencing guidelines system

was harmless error. The Government contends that it did not have

to show harmless error beyond a reasonable doubt because

Rodriguez-Cardenas is alleging a non-constitutional error. 

The court has determined that the Government must prove

harmless error beyond a reasonable doubt. United States v.

Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). The Government

has failed to carry its burden of proof. Although it does not

appear that the district court would have been inclined to impose

a lesser sentence, based on its limited remarks, it cannot be

determined beyond a reasonable doubt that the sentence would have

been the same if the mandatory guidelines had not been

applicable. Therefore, Rodriguez-Cardenas’s sentence is vacated
No. 04-41560

-3-

and the case is remanded to the district court for resentencing

in accord with United States v. Booker, 125 S. Ct. 738 (2005).

Rodriguez-Cardenas argues that 8 U.S.C. § 1326(b) is

unconstitutional and that Almendarez-Torres v. United States, 523

U.S. 224 (1998) was incorrectly decided in light of the holding

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

Rodriguez-Cardenas’s constitutional challenge to § 1326(b)

is foreclosed by Almendarez-Torres. Although Rodriguez-Cardenas

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. United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.

denied, 126 S. Ct. 298 (2005). Rodriguez-Cardenas properly

concedes that his argument is foreclosed in light of AlmendarezTorres and circuit precedent, but he raises it here to preserve

it for further review. The judgment of the district court is

affirmed with respect to this issue.

AFFIRMED IN PART, SENTENCE VACATED, AND CASE REMANDED FOR

RESENTENCING