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this opinion should not be published and is not precedent except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

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-51361

Summary Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

ELVIN OMAR BARAHONA-MEJIA,

Defendant-Appellant,

__________________

On Appeal from the United States District Court

For the Western District of Texas

__________________

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

Barahona-Mejia appeals his sentence following his guilty

plea to a charge of illegal reentry after deportation in

violation of 8 U.S.C. § 1326. We affirm in part and remand for

the limited purpose of consideration by the district court of

whether it will impose a different sentence under the nowadvisory sentencing guidelines and resentencing as necessary.

United States Court of Appeals

Fifth Circuit

F I L E D

February 6, 2006

Charles R. Fulbruge III

Clerk
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First, Barahona-Mejia argues that the felony and aggravated

felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional in light of Apprendi v. New Jersy, 530 U.S. 466

(2000). This argument is foreclosed by the Supreme Court’s

decision in Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998).

Second, Barahona-Mejia argues that the district court

committed Booker error when it sentenced him under the mandatory

Sentencing Guidelines. Barahona-Mejia did not raise a Booker or

Blakley objection at sentencing, and therefore his claim is

reviewed for plain error. United States v. Mares, 402 F.3d 511,

520 (5th Cir. 2005), cert. denied, 126 S.Ct. 43 (2005). An

appellate court may not correct an error the defendant failed to

raise in the district court unless there is (1) error, (2)that is

plain, and (3) that affects substantial rights. Id. The

government concedes that the district court committed Booker

error, but argues that Barahona-Mejia cannot demonstrate that the

error affected his substantial rights.

Barahona-Mejia points to two facts in support of his claim

that the district court’s Booker error affected his substantial

rights. First, the district court, after a discussion of

Barahona-Mejia’s situation in the sentencing hearing, stated, “I

wish I knew of some way that I could be of help to you, but I
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don’t know a way. That’s a very sad story that you’ve told me.”

The district court then asked counsel, “[C]an you think of

anything that could be done that would alleviate his problems?”

At the close of the hearing, the district court stated, “Mr.

Barahona, that’s as bad a situation as I’ve heard in a long time.

I wish I had the means to help you.” Second, after making these

statements, the district court imposed a sentence of 30 months,

the minimum sentence within the applicable Guideline range.

Barahona-Mejia argues that the district court’s sympathetic

statements, combined with the minimum sentence under the

Guidelines, demonstrate that the Booker error affected his

substantial rights.

The government argues that the statements made by the

district court, while sympathetic, do not indicate a desire to

sentence Barahona-Mejia outside the applicable Guideline range or

otherwise criticize the Guidelines-mandated result. Instead, the

government argues that Barahona-Mejia has misconstrued the

district court’s concern with his citizenship status as a desire

to impose a lesser sentence, and notes that the district court

did not respond to a suggestion by Barahona-Mejia’s counsel that

the court impose a lesser sentence so that he could return to

Honduras to find work.
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In reviewing a claim of Booker error, we consider

“statements of the sentencing judge that suggest a lower sentence

would be imposed under an advisory system.” See United States v.

Rodriguez-Gutierrez, 428 F.3d 201, 203-04 (5th Cir. 2005). In

doing so, we also consider the “relationship between the actual

sentence imposed and the range of sentences provided by the

Guidelines.” Id. at 204. “[S]entences falling at the absolute

minimum of the Guidelines provide the strongest support for the

argument that the judge will have imposed a lesser sentence.”

Id. Although that fact alone will not establish that the Booker

error affected the defendant’s substantial rights, a minimum

sentence is “highly probative, when taken together with relevant

statements by the sentencing judge indicating disagreement with

the sentence imposed, that the Booker error did affect the

defendant’s substantial rights.” Id.

Rather than speculate about the meaning of the district

court’s sympathetic comments to Barahona-Mejia, and whether he

would have imposed a shorter sentence had he understood that he

was free to consider such a sentence, and in light of the

sentence imposed at the bottom of the applicable Guideline range,

we REMAND for the limited purpose of consideration by the

district court of whether it wishes to impose a different

sentence under the now-advisory Sentencing Guidelines. If the

district court elects to resentence the defendant, it is
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authorized to vacate its original sentence and proceed to

resentence defendant under Rule 32 F.R.C.P. If the district

court decides not to resentence the defendant and enters an order

reflecting this decision, the court’s original sentence will

stand. 

SENTENCE AFFIRMED; CASE REMANDED FOR DISPOSITION CONSISTENT

WITH THIS OPINION.