*Pursuant to 5 TH C IR . 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opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

1 See United States v. Walters , 418 F.3d 4 61, 463-64 (5th Cir. 2005). United States Court of Appeals Fifth Circuit 

## FILED April 25, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40098 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus ELMER MOISES PARAJON, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1350-ALL

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges. PER CURIAM: * Elmer Moises Parajon appeals his guilty-plea conviction and sentence for being illegally present in the United States following

removal. He argues that the district court committed reversible Fanfan 1 error under United States v. Booker, 543 U.S. 220 (2005), by sentencing him (prior to Booker) pursuant to a mandatory2 At rearraignment, at which Parajon’s plea was accepted, the

court assured counsel that objections to sentencing enhancements under Blakely were preserved. 2 application of the Sentencing Guidelines. The Government asserts that he invited the Fanfan error or waived his claim by requesting a sentence at the low end of the guidelines range. As this court has construed comments of defense counsel narrowly in applying the invited error doctrine, the Government has not shown that Parajon invited the Fanfan error. See United States v. Green , 272 F.3d 748, 754-756 (5th Cir. 2001). Furthermore, as the record does not indicate that Parajon intentionally relinquished his Fanfan claim, the Government has not shown that Parajon has waived the claim. See United States v. ReyesCelestino,

___ F.3d

___ (slip op. 1873; No. 05-40368, 5th Cir. Mar. 17, 2006) (express consent “to be sentenced pursuant to the applicable Sentencing Guidelines” not waiver of Fanfan error); United States v. Dodson , 288 F.3d 153, 160 (5th Cir. 2002). As the Government concedes, Parajon preserved his Fanfan claim for review by raising an objection based upon Blakely v. Washington , 542, U.S. 296 (2004), in the district court. See Walters, 418 F.3d at 462-63. 2 Accordingly, the question before us “is whether the government has met its burden to show harmless error.” Id . at 464. The district court erred by sentencing Parajon pursuant to a3

mandatory application of the Guidelines. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert. denied, 126 S.Ct. 267 (2005). After granting his request for a downward departure in criminal history category from V to IV (reducing his guideline range from 46 to 57 months to 37 to 46 months), the district court sentenced Parajon to 40 months, near the middle of the thus calculated guidelines range, and refused Parajon’s request to further reduce the sentence but gave no indication as to the sentence it would impose if the Guidelines were held unconstitutional or advisory. In these circumstances, the Government has not met its “arduous burden” of showing that the

error was harmless. U nited States v. Garza , 429 F.3d 165, 170 (5th Cir. 2005) (internal quotation marks omitted). Accordingly, we vacate Parajon’s sentence and remand to the district court for resentencing. Paraj on’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Parajon contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S.Ct. 298 (2005). Parajon properly concedes that his argument is4

foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.