                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 12, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             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 individualized


     *
       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this opinion should not be published and is not precedent except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 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).
                               No. 04-11379
                                    -2-

imprisonment range 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. Booker1 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 sentence-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     foreclosed     by

Almendarez-Torres v. United States4 and existing circuit precedent,5


     1
      125 S.Ct. 738 (2005).
     2
      U.S. SENTENCING GUIDELINES MANUAL § 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
                             No. 04-11379
                                  -3-

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 error 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.



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-Flores, 405 F.3d 270, 277-78
(5th Cir. 2005) (this Court must follow Almendarez-Torres “‘unless
and until the Supreme Court itself decides to overrule it.’”
(quoting United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000))).
     6
      United 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 States 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
harmless 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.” (citations
omitted)).
                                No. 04-11379
                                     -4-

      Avendano     asserts    that     the   district      court’s     sentencing

discretion on remand should be capped at the applicable Sentencing

Guidelines maximum rather than the statutory maximum of twenty

years imprisonment.          Avendano claims that application of the

remedial holding in Booker, rendering the Sentencing Guidelines

advisory,8 violates the ex post 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 Sixth Amendment holding and our


      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 under Booker);
see also United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir.
2005) (same), pet. for cert. filed (U.S. Jun. 20, 2005 (No. 05-
5467); United States v. Jamison, ___ F.3d ___ (7th Cir. 2005)
(same) (citing Duncan and Scroggins).
                              No. 04-11379
                                   -5-

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.




     10
          Scroggins, 411 F.3d at 576 (quoting Booker, 125 S.Ct. at
769).
