* 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opinion should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

August 9, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

NO. 04-41081

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

POLO GAONA-RODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

5:04-CR-00497

Before DAVIS, JONES, and GARZA, Circuit Judges.

PER CURIAM:*

Polo Gaona-Rodriguez (“Gaona”) challenges his sentence

following his guilty plea for illegal reentry. Because Gaona

properly preserved his objection to the district court’s use of the

mandatory sentencing guidelines regime, we AFFIRM the conviction

but VACATE and REMAND for resentencing in accordance with the postBooker sentencing regime.
2

BACKGROUND

Gaona pleaded guilty to illegal reentry following

deportation and was sentenced to a term of imprisonment of fortysix months to be followed by a three-year term of supervised

release. The presentence report (PSR) recommended that Gaona’s

base offense level of 8 be increased by sixteen levels because he

had a prior conviction for the transportation of illegal aliens,

aiding and abetting. He received a three-level reduction of his

offense level for the acceptance of responsibility resulting in a

total offense level of 21. Based on a criminal history category of

III and an offense level of 21, Gaona’s guideline sentencing range

was forty-six to fifty-seven months.

During the sentencing hearing, Gaona objected to the

sixteen-level enhancement based on a violation of the Sixth

Amendment and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004). The district court stated that the Blakely issue was

preserved for appellate review and overruled the objection.

Prior to the sentence being imposed, defense counsel

argued that Gaona’s criminal history consisted of one misdemeanor

illegal reentry conviction and a conviction for transporting

illegal aliens. With respect to the “alien smuggling” conviction,

counsel argued that Gaona was told that if he guided some other

aliens through the woods to their vehicle, he would not have to pay

for his own trip. Counsel argued that in light of Gaona’s minimal
1 As the Government further concedes the error is not harmless, we will

not conduct a harmless error analysis here.

3

criminal history, the large increase in his offense level for his

prior conviction placed him in a higher guideline sentencing range

than fairness dictated.

The district court responded, “It’s the prior conviction

for the transporting illegal aliens that ratchets him up.”

The district court imposed the minimum guideline sentence. Gaona

filed a timely notice of appeal.

DISCUSSION

Little discussion is warranted in this case. Gaona’s

claims of error relate to the imposed sentence. The Government

concedes that Gaona properly preserved his claim under United

States v. Booker, 125 S. Ct. 738 (2005), by raising an objection

under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004),

at sentencing, and further concedes that the error was not

harmless.1 This concession is appropriate, as our caselaw

interpreting Booker has recognized even an Apprendi objection as

sufficient to preserve Sixth Amendment error. See United States v.

Pineiro, 410 F.3d 282, 285 n.1 (5th Cir. 2005) (noting that raising

an Apprendi-based objection was sufficient to preserve both a

Blakely error and a Booker error); see also United States v. Okoro,

407 F.3d 360, 375-76 (5th Cir. 2005) (finding that repeated

objections to the district court’s loss calculation method

sufficient to preserve Booker error even where defendant did not
4

specifically cite the Sixth Amendment, Apprendi, or Blakely).

Apprendi error formed the basis for Blakely as well as Booker, so

Gaona properly preserved the claim of error by invoking Blakely at

sentencing. His sentence therefore must be vacated and remanded

for resentencing in accordance with Booker.

In so doing, we observe that Gaona concedes his two

contentions based on the sixteen-level enhancement for an “alien

smuggling offense” and on the unconstitutionality of 8 U.S.C.

§ 1326(b) are foreclosed by prior precedent in this circuit.

United States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002)

(construing U.S.S.G. § 2L1.2(b)(1)(A)(vii); U.S. v. RodriguezMontelongo, 263 F.3d 429, 434 (5th Cir. 2001) (§ 1326(b)).

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.