                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                         April 25, 2006

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                               No. 05-40098
                             Summary Calendar



      UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

           versus

      ELMER MOISES PARAJON,

                                                 Defendant-Appellant.




           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:04-CR-1350-ALL



Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

      Elmer Moises Parajon appeals his guilty-plea conviction and

sentence for being illegally present in the United States following

removal.   He argues that the district court committed reversible

Fanfan1 error under United States v. Booker, 543 U.S. 220 (2005),

by   sentencing    him   (prior   to   Booker)   pursuant   to     a   mandatory


      *
      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opinion should not be published and is not precedent except under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.
      1
        See United States v. Walters, 418 F.3d 461, 463-64 (5th
Cir. 2005).
application of the Sentencing Guidelines.             The Government asserts

that he invited the Fanfan error or waived his claim by requesting

a sentence at the low end of the guidelines range.

      As this court has construed comments of defense counsel

narrowly in applying the invited error doctrine, the Government has

not shown that Parajon invited the Fanfan error.              See United States

v. Green, 272 F.3d 748, 754-756 (5th Cir. 2001).                Furthermore, as

the   record     does     not   indicate      that    Parajon     intentionally

relinquished his Fanfan claim, the Government has not shown that

Parajon   has    waived   the   claim.       See   United     States    v.   Reyes-

Celestino, ___ F.3d ___ (slip op. 1873; No. 05-40368, 5th Cir. Mar.

17, 2006)      (express   consent    “to     be   sentenced    pursuant      to   the

applicable Sentencing Guidelines” not waiver of Fanfan error);

United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002).

      As the Government concedes, Parajon preserved his Fanfan claim

for   review    by   raising    an   objection       based    upon     Blakely     v.

Washington, 542, U.S. 296 (2004), in the district court.                          See

Walters, 418 F.3d at 462-63.2        Accordingly, the question before us

“is whether the government has met its burden to show harmless

error.”   Id. at 464.

      The district court erred by sentencing Parajon pursuant to a



      2
       At rearraignment, at which Parajon’s plea was accepted, the
court assured counsel that objections to sentencing enhancements
under Blakely were preserved.

                                         2
mandatory application of the Guidelines.                 See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert. denied, 126

S.Ct. 267 (2005).        After granting his request for a downward

departure in criminal history category from V to IV (reducing his

guideline range from 46 to 57 months to 37 to 46 months), the

district court sentenced Parajon to 40 months, near the middle of

the thus calculated guidelines range, and refused Parajon’s request

to further reduce the sentence but gave no indication as to the

sentence   it   would      impose     if     the      Guidelines    were   held

unconstitutional    or    advisory.         In   these    circumstances,       the

Government has not met its “arduous burden” of showing that the

error was harmless.      United States v. Garza, 429 F.3d 165, 170 (5th

Cir. 2005) (internal quotation marks omitted).                 Accordingly, we

vacate Parajon’s sentence and remand to the district court for

resentencing.

     Parajon’s constitutional challenge to 8 U.S.C. § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998).    Although Parajon contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court would

overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), we have repeatedly rejected such arguments on the

basis that Almendarez-Torres remains binding. See United States v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S.Ct.

298 (2005).     Parajon     properly       concedes    that   his   argument   is


                                       3
foreclosed in light of Almendarez-Torres and circuit precedent, but

he raises it here to preserve it for further review.

             CONVICTION AFFIRMED; SENTENCE VACATED;

                    REMANDED FOR RESENTENCING.




                                 4
