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this opinion should not be published and is not precedent except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

June 27, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41340

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ANGEL RODRIGUEZ-PEREZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-458-ALL

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

Before Barksdale, Stewart, and Clement, Circuit Judges.

PER CURIAM:*

Jose Angel Rodriguez-Perez (Rodriguez) appeals his 37-month

prison sentence, imposed following his guilty plea to being an

alien unlawfully found in the United States after deportation and

after having been convicted of a felony, in violation of 8 U.S.C.

§ 1326(a) and (b). 

The Government contends that Rodriguez waived this appeal

pursuant to a waiver-of-appeal provision in his written plea

agreement. That waiver provision stated that Rodriguez was
No. 04-41340

-2-

“waiv[ing] the right to appeal the sentence imposed or the manner

in which it was determined,” except for an upward departure or a

sentence imposed above the statutory maximum. At Rodriguez’s

rearraignment proceeding, the magistrate judge called attention

to the waiver-of-appeal provision in Rodriguez’s plea agreement

but advised him that he retained his right to appeal an “illegal

sentence.” It is arguable that this advice was an inaccurate

characterization of the appeal waiver and thus did not comply

with FED. R. CRIM. P. 11(b)(1)(N)’s requirement that the court

advise the defendant of “the terms of any plea-agreement

provision waiving the right to appeal.” Accordingly, we conclude

that the appeal waiver was not knowing and voluntary, see United

States v. Robinson, 187 F.3d 516, 517–18 (5th Cir. 1999), and

that it therefore does not bar this appeal. 

Rodriguez argues that his sentence must be vacated and his

case remanded for resentencing because the district court

committed reversible error by sentencing him pursuant to a

mandatory Sentencing Guidelines regime, in light of United States

v. Booker, 543 U.S. 220 (2005). Rodriguez’s objection in

district court, pursuant to Blakely v. Washington, 542 U.S. 296

(2004), was sufficient to preserve this issue for harmless-error

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

2005); see United States v. Molina, No. 04-40876, 2006 WL 905978

at *4 (5th Cir. Apr. 4, 2006) (unpublished). The district

court’s sentence pursuant to a mandatory Guidelines scheme
No. 04-41340

-3-

constitutes “Fanfan” error. See Walters, 418 F.3d at 463-64. 

Because the sentencing transcript is silent regarding whether the

district court would have imposed the same sentence had the

Guidelines been advisory, the Government has failed to meet its

burden of proving beyond a reasonable doubt that the district

court would have imposed the same sentence had the Guidelines

been advisory only. See United States v. Woods, 440 F.3d 255,

257 (5th Cir. 2006). Accordingly, we vacate and remand for

resentencing.

In “the interest of judicial efficiency and to provide

guidance on remand,” see United States v. Murillo-Lopez, 444 F.3d 

337, 339 (5th Cir. 2006), we address other sentencing issues

raised by Rodriguez. Rodriguez contends that the district court

erred by imposing a 16-level Sentencing Guidelines increase for

having committed a prior “crime of violence,” based on his 1992

Texas conviction of burglary of a habitation. He maintains that

the elements of the 1992 offense do not include the use or

attempted or threatened use of physical force against another, as

required by U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because Rodriguez did

not raise this particular argument in the district court, we

review it for plain error only. See United States v. Olano, 507

U.S. 725, 731-37 (1993); United States v. Medina-Anicacio, 325

F.3d 638, 643 (5th Cir. 2003). We have held that the Texas

offense of burglary of a dwelling is equivalent to the enumerated

offense of “burglary of a dwelling” in § 2L1.2, cmt. n.1(B)(iii). 
No. 04-41340

-4-

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

Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006). No error,

plain or otherwise, is evident.

Rodriguez also argues that the “felony” and “aggravated

felony” provisions of § 1326(b) are unconstitutional. This

constitutional challenge to § 1326(b) 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

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). Rodriguez 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. 

We AFFIRM Rodriguez’s conviction, VACATE his sentence, and

REMAND the case for resentencing.