United States v. Galan-De La Torre
167 F. App'x 990
February 21, 2006 · Docket 04-41460
Headnotes
Generated summaries- Headnote 1
Galan challenged the constitutionality of 8 U.S.C. §§1326(b)(1)‑(2) on Apprendi grounds, but the court held the challenge is foreclosed by Almendarez‑Torres, which permits enforcement of status‑based statutes without jury proof of the status element.
- Headnote 2
Galan argued that the district court erred by applying mandatory Guidelines. The court relied on Booker, which converted the Guidelines from mandatory to advisory, rendering the mandatory‑Guidelines regime unconstitutional.
- Headnote 3
The sentencing transcript showed no evidence that the district court would have imposed the same sentence under an advisory regime, so the Government failed its burden to show the error was harmless.
- Headnote 4
Because the Government failed to prove beyond a reasonable doubt that the same term would have been imposed under advisory Guidelines, the court vacated Galan’s sentence and remanded for further proceedings.
- Headnote 5
The Fifth Circuit held that Galan’s challenge to the constitutionality of the illegal‑reentry provisions was foreclosed by the Supreme Court’s decision in Almendarez‑Torres, which permits enforcement of status‑based statutes without jury proof of the status element.
- Headnote 6
Galan argued that the district court erred by applying the mandatory Guidelines regime, which the Fifth Circuit affirmed had been held unconstitutional by the Supreme Court in Booker, rendering the Guidelines advisory.
- Headnote 7
The court found the sentencing transcript lacked evidence that an advisory‑Guidelines analysis would have produced the same sentence, and therefore the Government had not met its burden of proof.
- Headnote 8
Because the Government did not demonstrate that the same sentence would have resulted under advisory Guidelines, the Fifth Circuit vacated Galan’s sentence and remanded the case for further proceedings.
Opinion
Pedro Alonso Galan-De La Torre appeals his conviction and sentence for illegal reentry. Galan challenges the constitutionality of 8 U.S.C. § 1326(b)(1), (2) and, additionally, the district court’s application of the mandatory Sentencing Guidelines.
Galan’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 528 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Galan 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Galan 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.
Galan also contends that the district court erred in sentencing him pursuant to the mandatory Guidelines regime held unconstitutional in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 764-65, 160 L.Ed.2d 621 (2005). The Government concedes that Galan has preserved his claim of error. The sentencing transcript is devoid of evidence that the district court would have imposed the same sentence under an advisory regime, and, therefore, the Government has not borne its burden of establishing beyond a reasonable doubt that the district court’s error was harmless. See United States v. Walters, 418 F.3d 461, 464 (5th Cir.2005). Thus, Galan’s sentence is VACATED, and the case is REMANDED for further proceedings. See id. at 466.
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.