United States v. Cruz
Docket: No. 04-40958
Court: Court of Appeals for the Fifth Circuit; March 8, 2006; Federal Appellate Court
Leonardo Enrique Cruz appeals his conviction and sentence for re-entering the United States after deportation. He argues that the district court incorrectly applied the Sentencing Guidelines, specifically 2L1.2(b)(1)(A)(vii), by categorizing transportation of illegal aliens as “alien smuggling.” Cruz acknowledges that this issue is foreclosed by precedent set in United States v. Solis-Campozano, which defines alien smuggling to include transportation within the U.S., but he raises it for preservation purposes. Cruz further claims that the district court erred under United States v. Booker by applying the sentencing guidelines mandatorily, which he argues violates his Sixth Amendment rights. The court finds no “Booker” error since the only enhancement was due to Cruz's prior conviction. However, the court identifies a “Fanfan” error, as Cruz was sentenced under a mandatory guidelines system. As this error is not structural, the court reviews for harmless error beyond a reasonable doubt. The record lacks evidence that the district court would have imposed the same sentence had the guidelines been advisory, leading to a vacating of the sentence and a remand for resentencing. Cruz also challenges the constitutionality of the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) in light of Apprendi v. New Jersey, contending they are unconstitutional both facially and as applied. However, this challenge is foreclosed by Almendarez-Torres v. United States, which Cruz concedes. He raises this issue to preserve it for possible future review. The court affirms Cruz's conviction but vacates his sentence and remands for resentencing. This opinion will not be published and is not considered precedent except under specified circumstances.