Hernandez-Gonzalez

MEMORANDUM *

Benito Hernandez-Gonzalez appeals the district court’s five-year sentence following his plea of guilty to a violation of 8 U.S.C. § 1326 (a),(b)(2). We have jurisdiction under 28 U.S.C. § 1251 , and we affirm.

In sentencing Hernandez-Gonzalez, the district court determined that the United States Sentencing Guidelines were unconstitutional. As a result of this ruling, the district court imposed a five-year sentence without considering the sentencing factors enumerated in 18 U.S.C. § 3553 (a) or providing a statement of reasons for Hernandez-Gonzalez’s particular sentence. These omissions were error. See United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738, 767 , 160 L.Ed.2d 621 (2005).

We need not resolve whether Hernandez-Gonzalez’s Sixth Amendment challenge to the Sentencing Guidelines was sufficient to encompass these particular errors because, even under a harmless error standard of review, we are persuaded that Hernandez-Gonzalez suffered no prejudice.

Because the district court did not apply the Sentencing Guidelines when it imposed the five-year sentence, Hernandez-Gonzalez lacks standing to challenge the constitutionality of U.S.S.G. § 3El.l(b). See United…