                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT
                                               U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            September 7, 2005
                              No. 04-15357                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                      D.C. Docket No. 04-20282-CR-AJ

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

     versus

FRANCISCO MARINO VARGAS-VASQUEZ,

                                                       Defendant-Appellant.

                       __________________________

              Appeal from the United States District Court for the
                         Southern District of Florida
                        _________________________

                             (September 7, 2005)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

     Francisco Marino Vargas-Vasquez appeals his 41-month sentence for illegal

re-entry, in violation of 8 U.S.C. § 1326(a). We VACATE and REMAND.
                               I. BACKGROUND

      A federal grand jury indicted Vargas-Vasquez on one count of unlawfully

attempting to enter the United States after previously having been deported, in

violation of 8 U.S.C. § 1326(a) and (b)(2). Pursuant to a plea agreement, he pled

guilty to the charge. The presentence investigation report (“PSI”) calculated

Vargas-Vasquez’s base offense level as eight, pursuant to U.S.S.G. § 2L1.2.

Because Vargas-Vasquez previously had been deported for a drug trafficking

offense for which the sentence exceeded thirteen months, he received a 16-level

increase, pursuant to § 2L1.2(b)(1)(A)(i). He also received a three-level reduction

for acceptance of responsibility. Vargas-Vasquez’s total offense level was 21, and

his criminal history category was III. Accordingly, Vargas-Vasquez’s guideline

imprisonment range was 46 to 57 months of imprisonment.

      Vargas-Vasquez’s counsel filed two written objections to the PSI that are

relevant here. First, his counsel objected to the use of Vargas-Vasquez’s prior

drug trafficking convictions to establish his maximum sentence and guideline

range. Specifically, Vargas-Vasquez’s counsel argued that Vargas-Vasquez’s

indictment did not allege that his previous deportation was subsequent to a

conviction for a drug trafficking offense resulting in a sentence of 13 months or

more, and that Vargas-Vasquez was charged with violation of 8 U.S.C. § 1326(a),

                                         2
which imposes a maximum penalty of two years, not with the “distinct, aggravated

crime set forth separately in 8 U.S.C. § 1326(b).” R1-18 at 8. His counsel

contended that the indictment referenced § 1326(b)(2) but failed to contain the

elements of that offense. Accordingly, Vargas-Vasquez’s counsel argued that the

district court could not impose permissibly a sentence in excess of two years

because Vargas-Vasquez’s offense of conviction carried that maximum. Although

conceding that the Supreme Court, in Almendarez-Torres v. United States, 523

U.S. 224, 118 S. Ct. 1219 (1998), had previously rejected his argument, Vargas-

Vasquez’s counsel contended that the Supreme Court recently has called into

question its holding in that case. Second, Vargas-Vasquez’s counsel argued that,

based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the district

court could not consider Vargas-Vasquez’s two prior drug convictions in

calculating either his offense level or his criminal history category because they

were not alleged in the indictment, admitted in his guilty plea, or proven beyond a

reasonable doubt to a jury.

      At the sentencing hearing, Vargas-Vasquez’s counsel raised one objection

relevant here. He objected to the use of Vargas-Vasquez’s prior convictions both

to establish his offense level and to establish the criminal history category because

they were neither charged in the indictment nor admitted by Vargas-Vasquez.

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Citing United States v. Marseille, 377 F.3d 1249 (11th Cir. 2004), cert. denied,

___ U.S. ___, 1255 S. Ct. 637 (2004), the district court overruled Vargas-

Vasquez’s objection.

       Noting that, prior to “9/11,” “the government used to exercise discretion in

deciding who[m] to prosecute for illegal re-entry,” the district court stated that it

“wish[ed] the executive branch would go back to exercising some discretion.” R3

at 20. The district court then stated that it intended to impose a sentence “at the

bottom of the Guideline range,” id. at 20, and sentenced Vargas-Vasquez to 41

months of imprisonment.

                                    II. DISCUSSION

       On appeal, Vargas-Vasquez’s counsel contends on his behalf that the

district court erred under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005), by sentencing him under a mandatory guidelines scheme.1 In response, the

government concedes that the district court committed statutory Booker error and

that this case should be remanded for re-sentencing.




       1
         Additionally, Vargas-Vasquez avers that Booker overruled our holding in Marseille that
Almendarez-Torres is still binding Supreme Court precedent. Marseille, 377 F.3d at 1257. This
argument has no merit. In United States v. Camacho-Ibarquen, a case decided after Booker, we
noted that we must continue to follow Almendarez-Torres until it is explicitly overruled by the
Supreme Court. 410 F.3d 1307, 1316 n.3 (11th Cir. 2005) (per curiam).

                                               4
      Because Vargas-Vasquez’s counsel objected to the district court’s use of

Vargas-Vasquez’s convictions to enhance his sentence, when they were neither

charged in the indictment nor admitted by Vargas-Vasquez, Vargas-Vasquez

preserved his Booker claim. Thus, we review his Booker claim to determine

whether any error was harmless. United States v. Mathenia, 409 F.3d 1289, 1291

(11th Cir. 2005) (per curiam). “A non-constitutional error is harmless if, viewing

the proceedings in their entirety, a court determines that the error did not affect the

[sentence], ‘or had but very slight effect.’ If one can say ‘with fair

assurance . . . that the [sentence] was not substantially swayed by the error,’ the

[sentence] is due to be affirmed even though there was error.” Id. at 1292 (citation

omitted) (alteration in original).

      In this case, the government cannot show that the district court’s statutory

sentencing error, under Booker, did not affect Vargas-Vasquez’s sentence. Thus,

we vacate and remand for resentencing.

                                III. CONCLUSION

      Because the government cannot meet its burden of proving that the district

court’s statutory Booker error was harmless, we VACATE and REMAND for

resentencing.




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