                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                           F I L E D
                        UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT                           May 9, 2006

                                                                       Charles R. Fulbruge III
                                     No. 04-51237                              Clerk



     UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

                                        versus

     ANTONIO ESCARCEGA-MEDINA,

                                              Defendant-Appellant.


           Appeal from the United States District Court
                 for the Western District of Texas
                         No. 7:04-CR-50-ALL


Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     Following      a    bench       trial,   Antonio    Escarcega-Medina          was

convicted of illegal reentry after deportation, in violation of 8

U.S.C. § 1326(a) (2000).              On appeal, Escarcega challenges his

conviction on the ground that he is a citizen of the United States

pursuant   to   8   U.S.C.       §   1401.       After   carefully     considering

Escarcega’s claim in light of the briefs and pertinent portions of

the record, we find that the evidence was sufficient to support

Escarcega’s conviction. However, we vacate his sentence because it


     *
        Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.
violated the Sixth Amendment.

      To establish a violation of section 1326, the Government was

required to prove that Escarcega was (1) an alien; (2) previously

excluded, deported, or removed; and (3) found in the United States

without the permission of the Attorney General or the Secretary of

the Department of Homeland Security.               8 U.S.C. § 1326.     Escarcega

challenges only the first element.

      “[T]he      test    for    evidential    sufficiency     is     whether   any

substantial evidence supports the finding of guilty and whether the

evidence is sufficient to justify the trial judge, as trier of the

facts, in concluding beyond a reasonable doubt that the defendant

was guilty.”       United States v. Davis, 993 F.2d 62, 66 (5th Cir.

1993).   The Government presented evidence that Escarcega was born

in Mexico, that he had previously been issued an immigrant visa,

and   that   he    had    been    deported    on   multiple    occasions.       The

Government     thus      provided   the   district     court   with    sufficient

evidence that Escarcega was an alien in violation of section 1326.

      The district court concluded that the evidence of citizenship

was insufficient to raise a reasonable doubt.              It implicitly found

incredible Escarcega’s evidence that he had derivative citizenship

by virtue of his mother’s citizenship.                  Such was the court’s

prerogative as factfinder.            Escarcega’s conviction is therefore

AFFIRMED.

      Escarcega also brings a Sixth Amendment challenge to his



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sentence under the then-mandatory Guidelines.      Escarcega’s Blakely

objection before the district court properly preserved this issue

for appeal. The Government concedes that it cannot meet its burden

of proving “beyond a reasonable doubt that the district court would

not have sentenced [the defendant] differently had it acted under

an advisory Guidelines regime.”       United States v. Garza, 429 F.3d

165, 170 (5th Cir. 2005), cert. denied, 126 S. Ct. 1444 (2006).

Accordingly, Escarcega’s sentence is VACATED and his case is

REMANDED for resentencing consistent with United States v. Booker,

543 U.S. 220 (2005).1



CONVICTION AFFIRMED.    SENTENCE VACATED AND REMANDED.




     1
       The judgment of the district court incorrectly states
that Escarcega was convicted following a jury, rather than a
bench, trial. On remand, the district court may correct this
clerical error. See United States v. Powell, 354 F.3d 362, 371
(5th Cir. 2003).

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