                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   July 18, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-11272



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

RIGOBERTO GONZALEZ-ESQUIVEL,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
         for the Northern District of Texas, Dallas Division
                         No. 3:04-CR-214-ALL-G
                          --------------------

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM*

     Rigoberto Gonzalez-Esquivel (Gonzalez) appeals from his

sentence after pleading guilty to a single count of illegal

reentry after having been removed from the country.      Finding no

error, we affirm.

                                 I.

     The only relevant facts in this case relate to Gonzalez’s

criminal history and sentence, which was imposed before Booker.

Gonzalez is a national and citizen of Mexico.    During 1998,

Gonzalez was ordered removed from the United States on two

     *
      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this opinion should not be published and is not precedent except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.
                             No. 04-11272
                                  -2-

separate occasions.   On at least 13 other occasions he was

apprehended for being illegally in the United States and allowed

to voluntarily return to Mexico.       In September 2001, Gonzalez

illegally entered the United States through Laredo, Texas.       In

May 2004, Gonzalez was arrested in Dallas, Texas for failure to

identify and a probation violation and the charges in this case

were instituted.

     The Presentence Investigation Report (PSR) fixed Gonzalez’s

base offense level at 8 pursuant to USSG § 2L1.2(a).       His offense

level was increased by 8 pursuant to USSG § 2L1.2(b)(1)(C)

because Gonzalez had previously been deported after conviction

for an aggravated felony (possession of cocaine).       After a three

level deduction for acceptance of responsibility, Gonzalez’s

offense level was set at 13.    Three prior convictions resulted in

5 criminal history points.    The PSR assessed two additional

criminal history points because the instant offense occurred

while Gonzalez was on probation.       The resulting offense level of

13 and criminal history category of IV yielded a guideline

sentencing range of 24 to 30 months.

     Gonzalez filed several objections to the PSR including

arguments (1) that the application of the 8 level enhancement

based on his previous conviction for an aggravated felony

violates Blakely; (2) that the enhancements to the calculation of

his criminal history violate Blakely and Apprendi; and (3) that



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the guidelines as a whole are unconstitutional.       The district

court rejected these objections.       At sentencing, following the

suggestion of the PSR, the district court imposed an upward

departure under USSG § 4A1.3(a)(2)(C) and (E) and sentenced

Gonzalez to 60 months imprisonment.       Gonzalez appeals.

                                 II.

     Gonzalez argues first that his prior aggravated felony

conviction should have been alleged in the indictment and proven

beyond a reasonable doubt.    He concedes that this argument was

rejected by the Supreme Court in Almendarez-Torres v. United

States, 523 U.S. 224 (1998) and is foreclosed by Fifth Circuit

authority.   United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005).

                                III.

     Gonzalez argues next that his case should be remanded for

resentencing because he was sentenced under the mandatory

guidelines systems ruled unconstitutional in Booker.          He argues

that the court committed Booker violations by enhancing his

offense level based on a prior conviction of an aggravated felony

and by increasing his criminal history category because he

committed the instant offense while on probation.       These

arguments are without merit.

     Booker error requires consideration of a fact in sentencing

(other than a prior conviction) that was not found by the jury or



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admitted by the defendant.     United States v. Booker, 125 S.Ct.

738, 747, n.1 (2005); United States v. Guevara, 408 F.3d 252, 261

(5th Cir. 2005).   Both the enhancement and the increase in

criminal history category Gonzalez complains of rest solely on

the facts of Gonzalez’s prior convictions.

     Gonzalez also claims Booker error on the basis that he was

sentenced under a mandatory, rather than a discretionary,

guideline system (Fanfan error).       This argument ignores the fact

that after considering the mandatory elements of the guidelines,

the district court in Gonzalez’s case elected to exercise its

discretion to upwardly depart and impose a sentence that was not

bound by the previously mandatory guidelines.      We question, as we

have done before, “[w]hether exercise of a court’s discretion to

depart upward is a decision made under a ‘mandatory Guidelines

regime,’ as needed for Booker error.”       United States v. Jones,

435 F.3d 541, 543 (5th Cir. 2006).      Again, we need not decide

that question, because even assuming Gonzalez can establish

Booker error under these circumstances, we find any error to be

harmless.   Id.

     Cases support the view that when the district court departs

upwardly, this discretionary increase in the sentence is enough

to demonstrate that the error is harmless, i.e., that the

district court would not have imposed a lighter sentence in an




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advisory regime.   Id.(citing United States v. Rodriguez-Chavez,

153 Fed.Appx. 524 (10th Cir. 2005)).

     In addition, the record as a whole demonstrates that the

judge in this case knew that the upward departure was

discretionary.   The district court reviewed the provisions of the

sentencing guidelines that permitted discretionary departure.

USSG § 4A1.3(a)(1), (2)(C) and (E).    It reviewed the defendant’s

conduct that satisfied the conditions of these provisions

including the fact that he violated his supervised release by re-

entering the United States, that on at least 13 occasions he

entered the United States illegally without being arrested, and

that his use of many aliases made tracking his whereabouts and

criminal activity difficult.   The district court concluded that

“there is a substantial likelihood that the defendant will

continue to enter the United States illegally” and that “he has

been undeterred previously by other sanctions within the criminal

justice system such as probation or deportation.”   Noting that

the Fifth Circuit had previously upheld a departure from a

guidelines range of 27 to 33 months up to 60 months, the district

court sentenced the defendant to 60 months imprisonment.

Although the district court at one point referred to the upward

departure using the word “must”, the single use of this word does

not overcome the remainder of the record which reflects that the




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district court was clearly making a discretionary decision in

imposing the upward departure.

     Accordingly, we conclude that the government has borne its

burden of demonstrating that any error was harmless by

establishing beyond a reasonable doubt that the Booker error did

not contribute to the sentence Gonzalez received and that the

district court would have imposed the same sentence under an

advisory system.   Jones, 435 F.3d at 543.

                                 IV.

     Gonzalez argues finally that the Due Process clause prevents

the imposition of a sentence above the maximum sentencing limits

as the merits majority in Booker defined the concept.    He asks

this court to hold that the Ex Post Facto clause is incorporated

into the Due Process Clause, thereby precluding application of

the remedial majority opinion in Booker to “pipeline defendants”

such as himself.   These arguments are foreclosed by United States

v. Scroggins, 411 F.3d 572, 577 (5th Cir. 2005).

                                 V.

     For the foregoing reasons, we affirm Gonzalez’s sentence.

AFFIRMED.




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