                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      August 9, 2005

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              NO. 04-41081
                        _______________________


                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                          POLO GAONA-RODRIGUEZ,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                            5:04-CR-00497



Before DAVIS, JONES, and GARZA, Circuit Judges.

PER CURIAM:*

           Polo Gaona-Rodriguez (“Gaona”) challenges his sentence

following his guilty plea for illegal reentry.               Because Gaona

properly preserved his objection to the district court’s use of the

mandatory sentencing guidelines regime, we AFFIRM the conviction

but VACATE and REMAND for resentencing in accordance with the post-

Booker sentencing regime.




     *
            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opinion should not be published and is not precedent except under the limited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.
                                  BACKGROUND

            Gaona    pleaded   guilty       to    illegal     reentry     following

deportation and was sentenced to a term of imprisonment of forty-

six months to be followed by a three-year term of supervised

release.    The presentence report (PSR) recommended that Gaona’s

base offense level of 8 be increased by sixteen levels because he

had a prior conviction for the transportation of illegal aliens,

aiding and abetting.      He received a three-level reduction of his

offense level for the acceptance of responsibility resulting in a

total offense level of 21.      Based on a criminal history category of

III and an offense level of 21, Gaona’s guideline sentencing range

was forty-six to fifty-seven months.

            During the sentencing hearing, Gaona objected to the

sixteen-level    enhancement      based     on    a   violation      of   the   Sixth

Amendment and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004).     The district court stated that the Blakely issue was

preserved for appellate review and overruled the objection.

            Prior to the sentence being imposed, defense counsel

argued that Gaona’s criminal history consisted of one misdemeanor

illegal    reentry   conviction    and      a    conviction    for    transporting

illegal aliens.      With respect to the “alien smuggling” conviction,

counsel argued that Gaona was told that if he guided some other

aliens through the woods to their vehicle, he would not have to pay

for his own trip.     Counsel argued that in light of Gaona’s minimal



                                        2
criminal history, the large increase in his offense level for his

prior conviction placed him in a higher guideline sentencing range

than fairness dictated.

             The district court responded, “It’s the prior conviction

for    the   transporting     illegal    aliens      that   ratchets          him    up.”

The district court imposed the minimum guideline sentence.                          Gaona

filed a timely notice of appeal.

                                  DISCUSSION

             Little discussion is warranted in this case.                      Gaona’s

claims of error relate to the imposed sentence.                    The Government

concedes that Gaona properly preserved his claim under United

States v. Booker, 125 S. Ct. 738 (2005), by raising an objection

under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004),

at    sentencing,   and    further     concedes   that      the    error       was   not

harmless.1      This      concession    is   appropriate,         as    our    caselaw

interpreting Booker has recognized even an Apprendi objection as

sufficient to preserve Sixth Amendment error. See United States v.

Pineiro, 410 F.3d 282, 285 n.1 (5th Cir. 2005) (noting that raising

an Apprendi-based objection was sufficient to preserve both a

Blakely error and a Booker error); see also United States v. Okoro,

407 F.3d     360,   375-76    (5th    Cir.   2005)    (finding         that   repeated

objections     to   the    district     court’s      loss   calculation         method

sufficient to preserve Booker error even where defendant did not

      1
            As the Government further concedes the error is not harmless, we will
not conduct a harmless error analysis here.

                                         3
specifically cite the Sixth Amendment, Apprendi, or Blakely).

Apprendi error formed the basis for Blakely as well as Booker, so

Gaona properly preserved the claim of error by invoking Blakely at

sentencing.   His sentence therefore must be vacated and remanded

for resentencing in accordance with Booker.

          In so doing, we observe that Gaona concedes his two

contentions based on the sixteen-level enhancement for an “alien

smuggling offense” and on the unconstitutionality of 8 U.S.C.

§ 1326(b) are foreclosed by prior precedent in this circuit.

United States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002)

(construing U.S.S.G. § 2L1.2(b)(1)(A)(vii); U.S. v. Rodriguez-

Montelongo, 263 F.3d 429, 434 (5th Cir. 2001) (§ 1326(b)).

          CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.




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