                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                  March 17, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40368


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              VERSUS


                     CARLOS REYES-CELESTINO,
                  also known as Carlos Perez,

                                                Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas


Before REAVLEY, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:

                           INTRODUCTION

     Carlos Reyes-Celestino (“Reyes”) pleaded guilty to being found

in the United States following deportation without having obtained

consent to reapply for admission, in violation of 8 U.S.C. § 1326.

Reyes appeals his 63-month sentence pursuant to United States v.

Booker, 543 U.S. 220 (2005).1     We vacate Reyes’s sentence and


     1
      To preserve the issue for possible review by the Supreme
Court, Reyes also challenges the constitutionality of § 1326, but
correctly concedes that this argument is foreclosed. See
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); see
also United States v. Alfaro, 408 F.3d 204, 210-11 (5th Cir.
2005), cert. denied, 126 S.Ct. 271 (2005).
remand to the district court for resentencing.

                            BACKGROUND

     On July 29, 2004, Reyes pleaded guilty to a violation of 8

U.S.C. § 1326.     A pre-sentence report (“PSR”) assigned a base

offense level of eight and recommended a 16-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(i) because Reyes has previously been

convicted for robbery.   After a two-level adjustment for accepting

responsibility, Reyes’s offense level was 22, his criminal history

category was VI, and his Guideline range was 84-105 months.

     Reyes objected to the PSR, arguing that (1) the 16-level

enhancement was unconstitutional under Blakely v. Washington, 542

U.S. 296 (2004), and (2) his criminal history was over-represented.

The district court overruled the objections, but upon motion by the

Government and in accordance with the plea agreement, it granted an

additional one-point reduction for acceptance of responsibility and

a two-point reduction for early disposition. See U.S.S.G. § 5K3.1.

Thus, the district court determined that Reyes’s final offense

level was 19, resulting in a Guideline range of 63-78 months.   The

district court sentenced Reyes to 63 months in prison.        Reyes

timely appealed.

                            DISCUSSION

     Reyes’s primary argument on appeal is that the district court

erred by sentencing him under the mandatory guidelines scheme held

unconstitutional in Booker.    This type of argument is properly


                                 2
characterized as a Fanfan claim.         See United States v. Valenzuela-

Quevedo, 407 F.3d 728, 733 (5th Cir. 2005), cert. denied, 126 S.Ct.

267 (2005).

      As a threshold matter, Reyes’s plea agreement contains the

following provision:

      The defendant, by entering this plea, also waives any
      right to have facts that the law makes essential to the
      punishment either (1) charged in the indictment or (2)
      proven to a jury or (3) proved beyond a reasonable doubt.
      The defendant explicitly consents to be sentenced
      pursuant to the applicable Sentencing Guidelines. The
      defendant explicitly acknowledges that his plea to the
      charged offense(s) authorizes the court to impose any
      sentence authorized by the Sentencing Guidelines, up to
      and including the statutory maximum under the relevant
      statute(s).

The Government asserts that Reyes waived his Fanfan claim by

consenting to be sentenced pursuant to the Sentencing Guidelines.

We disagree.        The plea agreement does not specify whether Reyes

consented to a mandatory or advisory application of the Sentencing

Guidelines. Thus, because “we must construe all ambiguities in the

plea agreement against the government,” United States v. Martinez,

263 F.3d 436, 438 (5th Cir. 2001), we cannot say that Reyes

unambiguously agreed to a mandatory application of the Sentencing

Guidelines.

      Additionally, although Reyes agreed to be sentenced under the

Sentencing Guidelines, he did not explicitly waive his right to

challenge the constitutionality of the Guidelines on appeal.             We

now   join    our    sister   circuits    and   hold   that   under   these



                                     3
circumstances, a defendant who agreed “to be sentenced pursuant to

the applicable Sentencing Guidelines” is not precluded from raising

on appeal an alleged Fanfan error.       See United States v. Puckett,

422 F.3d 340, 343 (6th Cir. 2005); United States v. Lea, 400 F.3d

1115, 1116 (8th Cir. 2005).

     Reyes properly preserved his Fanfan claim below when he

objected to his sentence under Blakely.           See United States v.

Walters, 418 F.3d 461, 463 (5th Cir. 2005).          This Court reviews

preserved Fanfan claims for harmless error.         See United States v.

Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005), cert. denied, 126

S.Ct. 43 (2005).      When we review for harmless error, “the only

question is whether the government has met its burden to show

harmless error beyond a reasonable doubt in the imposition of [the

defendant’s] sentence.”      Walters, 418 F.3d at 464.          That is, the

Government must convince us beyond a reasonable doubt “that the

district court would have imposed the same sentence absent the

error.”   United States v. Pineiro, 410 F.3d 282, 286 (5th Cir.

2005).

     The Government argues that the district court’s Fanfan error

was harmless because the district court (1) “gave no indication

that it wanted to impose a lesser sentence but was prevented from

doing so,”    and   (2)   “denied   [Reyes’s]   request   for    a   downward

departure.”    We have previously found unpersuasive these exact

reasons within the context of a harmless error analysis because

they improperly place the government’s burden on the defendant.

                                     4
Pineiro, 410 F.3d at 286.

     The sentencing transcript is devoid of any evidence that the

district court would have imposed the same sentence under an

advisory guidelines scheme.    Thus, the Government has not met its

burden of establishing beyond a reasonable doubt that the district

court’s Fanfan error was harmless.    See id.

     Accordingly, Reyes’s sentence is VACATED, and the case is

REMANDED for resentencing.    See id. at 287.

VACATED and REMANDED.




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