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opinion should not be published and is not precedent except under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

1 See United States v. Walters, 418 F.3d 461, 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 mandatory
2 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 a
3

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. United 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.

Parajon’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 is
4

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.