United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 22, 2006

Charles R. Fulbruge III Clerk No. 04-40900 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE JAIME NARANJO-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-208-ALL --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Jaime Naranjo-Martinez appeals his guilty-plea

conviction and sentence for being found unlawfully present in the

United States following deportation after conviction for

possession of marijuana with intent to distribute. Naranjo-

Martinez argues that

(b) is unconstitutional.

Naranjo-Martinez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Naranjo-Martinez contends that Almendarez-Torres was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 04-40900 -2-

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey,

(2000), we have repeatedly rejected

such arguments on the basis that Almendarez-Torres remains

binding. See United States v. Garza-Lopez,

(5th Cir.), cert. denied,

(2005). Naranjo-

Martinez properly concedes that his argument is foreclosed in

light of Almendarez-Torres and circuit precedent, but he raises

it here to preserve it for further review.

Naranjo-Martinez also argues that the district court erred

in imposing his sentence pursuant to the mandatory United States

Sentencing Guidelines invalidated in United States v. Booker,

,

(2005). The Government concedes that

Naranjo-Martinez’s objection pursuant to Blakely v. Washington,

(2004), was sufficient to preserve this argument for

appeal. Therefore, we review Naranjo-Martinez’s sentence for

harmless error. See United States v. Mares,

, 520

n.9 (5th Cir.), cert. denied,

(2005). Under that

standard, the sentence will be vacated and remanded unless the

Government proves beyond a reasonable doubt that the error was

harmless--i.e., that it did not affect the sentence Naranjo-

Martinez received. See United States v. Walters,

(5th Cir. 2005).

The Government argues that Naranjo-Martinez admitted his

prior conviction at rearraignment and that his sentence was No. 04-40900 -3-

enhanced based on his prior conviction, a factor to which Booker

does not apply. The Government argues that the error was

harmless because the district court considered the factors in

(a), FED. R. CRIM. P. 32(d), the Guidelines, and all

other matters before the court prior to imposing a sentence

within the applicable guidelines sentencing range.

The Government’s contentions are insufficient to satisfy its

burden of demonstrating that the district court, operating under

an advisory Guidelines scheme, would have imposed the same

sentence. Rather, the sentence imposed may simply reflect what

the district court believed was appropriate within the then-

mandatory Guidelines framework. See, e.g., United States v.

Garza,

(5th Cir. 2005) (recognizing that the

Government had, to date, demonstrated harmless Booker error only

in instances where (1) the district court expressly indicated

that it would impose the same sentence under an advisory scheme

and (2) the district court expressly refused to run the

defendant’s federal Guidelines sentence concurrently with his

state sentence). The assertions by the Government, without more,

shed no light on how the district court would have acted had it

known that it was not bound to follow the Guidelines.

Accordingly, the Government has failed to demonstrate harmless

error.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR

RESENTENCING.