                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1953
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Francisco Beltran-Hernandez,            *
also known as El Gordo,                 *      [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 23, 2005
                                Filed: August 8, 2005
                                 ___________

Before BYE, HEANEY, and SMITH, Circuit Judges.
                            ___________

PER CURIAM.

       Pursuant to the order of the United States Supreme Court in Beltran-Hernandez
v. U.S., 125 S. Ct. 1053 (2005), vacating our judgment and remanding this case, we
review for error under United States v. Booker, 125 S. Ct. 738 (2005). Because
Beltran-Hernandez failed to raise a Booker-type issue below, we apply the plain error
standard under United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005), and finding
none, we reaffirm our prior opinion with regard to Beltran-Hernandez.
HEANEY, Circuit Judge, concurring.

       I continue to believe that a defendant's challenge to the factual basis for a
sentence enhancement preserves his Sixth Amendment sentencing claim. See United
States v. Pirani, 406 F.3d 543, 555-62 (en banc) (Heaney, J., dissenting). Moreover,
I adhere to the view stated by Judge Bye in Pirani that defendants who did not
properly preserve their Booker claims in the district court are nonetheless generally
entitled to resentencing under a constitutional regime. Pirani, 406 F.3d at 562-67
(Bye, J., dissenting). Because a majority of our court held to the contrary on both
counts, however, I concur.

BYE, Circuit Judge, concurring.

       For the reasons articulated in my dissent in United States v. Pirani, 406 F.3d
543, 562-67 (8th Cir. 2005) (en banc) (Bye, J., dissenting), I join Judge Heaney in
“adher[ing] to the view that defendants who did not properly preserve their Booker
claims in the district court are nonetheless entitled to resentencing under a
constitutional regime.” Like Judge Heaney, however, I recognize we are bound by
the holding of our en banc court, and I therefore concur.
                      ______________________________




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