* Pursuant to 5 TH C IR

. R. 47.5, the court has determi ned 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this opinion should not be published and is not precedent except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 Se e 18 U.S.C. § 3583(b)(2) (authorizing courts to impose a

supervised release term of not less than three years for a class C

felony); id. § 3559(a)(3) (defining a class C felony as an offense

with a statutory maximum term of imprisonment less than twenty-five

years, but at least ten years). United States Court of Appeals

Fifth Circuit



## FILED

August 12, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11379

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROLANDO AVENDANO-ALEMAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:04-CR-00146-ALL

--------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM: *

Rolando Avendano-Aleman (“Avendano”) appeals the sentence

imposed after he plead guilty to illegally reentering the United

States following deportation, in violation of 8 U.S.C. § 1326.

Under section 1326, the maximum sentence available was twenty years

imprisonment and three years supervised release, 1 but under the

United States Sentencing Guidelines, Avendano’s individualizedNo. 04-11379

-2-

1 125 S.Ct. 738 (2005).

2 U.S. S ENTENCING G UIDELINES M ANUAL § 2L1.2(b)(1)(A)(ii) (2004).

3 Booker

, 125 S. Ct. at 749-50, 764 (holding that mandatory

sentences that are enhanced based on facts not admitted by the

defendant or found beyond a reasonable doubt violate the Sixth

Amendment and remedying the constitutional violation by rendering

the Sentencing Guidelines advisory only).

4 523 U.S. 224, 226-27, 235 (1998) (holding that a prior

conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and

not a separate element of a criminal offense and therefore it need imprisonment ra nge was determined to be seventy to eighty-seven

months imprisonment and his supervised release range was determined

to be two to three years. Avendano was ultimately sentenced to

seventy-eight months imprisonment and three years supervised

release.

On appeal, Avendano raises three challenges to his sentence,

all of which were preserved in the district court. Avendano argues

that his Sixth Amendment rights were violated under United States

v. Booker 1 because his sentence (1) was enhanced sixteen levels

under the Sentencing Guidelines based on a prior conviction for “a

crime of violence,” 2 and (2) was imposed under the mandatory

sentencing regime. 3 Avendano also challenges the constitutionality

of the se ntence-enhancement provisions in section 1326(b)(1) and

(b)(2), which increase the statutory maximum prison term from two

to either ten or twenty years based on a prior felony conviction or

a prior aggravated felony conviction, respectively. As Avendano

concedes, however, his latter argument is f oreclosed by

Almendarez-Torres v. United States 4 and existing circuit precedent, 5No. 04-11379

-3-

not be proved to a jury or admitted by the defendant before it may

be used to enhance a sentence).

5 See United States v. Izaguirre-Fl ores , 405 F.3d 270, 277-78

(5th Cir. 2005) (this Court must follow Almendarez-Torres “‘unless

and until the Supreme C ourt itself decides to overrule it.’”

(quoting United States v. Dabeit

, 231 F.3d 979, 984 (5th Cir.

2000))).

6 Unite d States v. Mares , 402 F.3d 511, 520 n.9 (5th Cir.

2005), pet. for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).

7 See United Stat es v. Pineiro , 410 F.3d 282, 285 (5th Cir.

2005) (“[T]o show harmlessness, the government must demonstrate

beyond a reasonable doubt that the Sixth Amendment Booker error did

not affect the sentence that the defendant received .”); United

States v. Akpan

, 407 F.3d 360, 377 (5th Cir. 2005) (“[T]he

government must bear the burden of demonstrating that the error was

harmles s by demonstrating beyond a reasonable doubt that the

federal constitutional error of which the defendant complains did

not contribute to the sentence that he received.” (ci tations

omitted)). but the argument is raised to preserve the issue for Supreme Court

review.

When a Sixth Amendment claim under Booker “is preserved in the

district court by an objection, [this Court] will ordinarily vacate

the sentence and remand, unless we can say the erro r is harmless

under rule 52(a) of the Federal Rules of Criminal Procedure.” 6 The

Government concedes, and we agree based on the record, that it

cannot show harmless error as to Avendano’s claim that the district

court improperly sentenced him under mandatory Sentencing

Guidelines. Because the Government cannot show beyond a reasonable

doubt that the district court would not have sentenced Avendano

differently under an advisory sentencing regime, 7 we vacate and

remand for resentencing in accordance with Booker

.No. 04-11379

-4-

8 Booker

, 125 S. Ct. at 764 (excising the statutory provision

making application of the guidelines mandatory).

9 See United States v. Scroggins

, 411 F.3d 572, 575-76 (5th

Cir. 2005) (rejecting a nearly identical argument unde r Booker ) ;

see also United States v. Duncan

, 400 F.3d 1297, 1306-08 (11th Cir.

2005) (same), pet. for c ert. filed (U.S. Jun. 20, 2005 (No. 05-

5467); United States v. Jamison

,

___ F.3d

___ (7th Cir. 2005)

(same) (citing Duncan and Scroggins ). Avendano asserts that the district court’s sentencing

discretion on remand should be capped at the applicable Sentencing

Guidelines maximum rather than the statutory maximu m of twenty

yea rs imprisonment. Avendano claims that application of the

r emedial holding in B ooker

, rendering the Sentencing Guidelines

advisory, 8 violates the ex po st facto and due process clauses of

the Constitution by exposing him to a harsher sentence under the

advisory guidelines system than was available under the mandatory

system. Avendano’s claim is meritless because (1) at all pertinent

times the statutory maximum prison term was twenty years,

(2) before Avendano plead guilty and before his guideline

punishment range was determined, the court explicitly notified him

that he faced a statutory maximum prison term of twenty years,

which is the same potential term he will face on remand, and

(3) the court admonished him that his guilty plea would stand even

if the ultimate sentence imposed was harsher than he expected. 9

Moreover, in United States v. Scroggins , we recently rejected a

similar argument, holding that it “is at least implicitly contrary

to the holding in Justice Breyer’s Booker opinion that ‘we must

apply today’s holdings– both the Si xth Amendment holding and ourNo. 04-11379

-5-

10 Scroggins

, 411 F.3d at 576 (quoting Booke r , 125 S.Ct. at

769). remedial interpretation of the Sentencing Act–to all cases on

direct review.’” 10

The district court’s judgment is therefore VACATED and

REMANDED for resentencing in accordance with Booker

.