                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                   October 13, 2005
                          FOR THE FIFTH CIRCUIT
                          _____________________               Charles R. Fulbruge III
                                                                      Clerk
                               No. 04-50955
                          _____________________

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

                                  versus

JEREMY PHILLIP VIALPANDO,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
            for the Western District of Texas, El Paso
                   USDC No. 3:04-CR-484-ALL-PRM
_________________________________________________________________

Before JOLLY, BEAM1 and BARKSDALE, Circuit Judges.

PER CURIAM:2

     After a review of the record, study of the briefs, and

consideration of oral argument, we find that the district court

abused its discretion in failing to consider the Blakely objection

raised   by   Vialpando   at   sentencing.   By   raising    the     Blakely

objection at the sentencing hearing Vialpando properly preserved

his Booker appeal.    See United States v. Saldana, __ F.3d __, 2005

WL 2404810 (5th Cir. Sept. 30, 2005) (holding that the defendant



     1
       Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
     2
       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this opinion should not be published and is not precedent except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.
“preserved his Booker challenge . . . by citing Blakely at his

sentencing hearing”).   As the government has correctly conceded

that it cannot meet its burden of demonstrating harmless error, we

remand the case for resentencing.

     Although remand is required based on Vialpando’s Booker claim,

we note that his claims as to the validity of the eight prior

Colorado convictions used by the district court in calculating

Vialpando’s criminal history score will also need to be addressed.

While we agree with the district court that Vialpando’s claim as to

the lack of identity evidence linking him to those convictions is

without merit, the district court on remand will need to determine

if the right to counsel was satisfied as constitutionally required

in each of the eight prior convictions at issue.       As such the

sentence of the district court is VACATED and the case is REMANDED

for resentencing not inconsistent with this opinion.

                                             VACATED and REMANDED.




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