                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                      IN THE UNITED STATES COURT OF APPEALS                          FILED
                              FOR THE FIFTH CIRCUIT                             February 6, 2006

                                _____________________                         Charles R. Fulbruge III
                                                                                      Clerk
                                     No. 04-51361
                                   Summary Calendar
                                 ____________________


                              UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                            v.

                              ELVIN OMAR BARAHONA-MEJIA,

                                                    Defendant-Appellant,

                                    __________________

                On Appeal from the United States District Court
                       For the Western District of Texas
                               __________________

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

       Barahona-Mejia          appeals    his      sentence   following   his        guilty

plea       to    a   charge    of    illegal       reentry    after   deportation            in

violation of 8 U.S.C. § 1326.                We affirm in part and remand for

the limited purpose of consideration by the district court of

whether         it   will   impose    a   different     sentence      under     the      now-

advisory sentencing guidelines and resentencing as necessary.



       *
      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this opinion should not be published and is not precedent except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.


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     First, Barahona-Mejia argues that the felony and aggravated

felony    provisions       of   8    U.S.C.      §    1326(b)(1)      and     (b)(2)      are

unconstitutional in light of Apprendi v. New Jersy, 530 U.S. 466

(2000).      This     argument       is   foreclosed       by   the       Supreme    Court’s

decision in Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998).

     Second,      Barahona-Mejia            argues     that     the       district       court

committed Booker error when it sentenced him under the mandatory

Sentencing Guidelines.           Barahona-Mejia did not raise a Booker or

Blakley   objection      at     sentencing,          and   therefore        his   claim    is

reviewed for plain error.             United States v. Mares, 402 F.3d 511,

520 (5th Cir. 2005), cert. denied, 126 S.Ct. 43 (2005).                                     An

appellate court may not correct an error the defendant failed to

raise in the district court unless there is (1) error, (2)that is

plain,    and   (3)    that     affects      substantial        rights.           Id.      The

government      concedes      that    the    district      court      committed         Booker

error, but argues that Barahona-Mejia cannot demonstrate that the

error affected his substantial rights.

     Barahona-Mejia points to two facts in support of his claim

that the district court’s Booker error affected his substantial

rights.      First,     the     district         court,    after      a    discussion      of

Barahona-Mejia’s situation in the sentencing hearing, stated, “I

wish I knew of some way that I could be of help to you, but I



                                             2
don’t know a way.        That’s a very sad story that you’ve told me.”

The   district    court     then    asked       counsel,     “[C]an   you    think    of

anything that could be done that would alleviate his problems?”

At the close of the hearing, the district court stated, “Mr.

Barahona, that’s as bad a situation as I’ve heard in a long time.

I wish I had the means to help you.”                    Second, after making these

statements, the district court imposed a sentence of 30 months,

the   minimum    sentence     within       the     applicable     Guideline     range.

Barahona-Mejia      argues     that       the     district    court’s     sympathetic

statements,      combined     with     the        minimum    sentence       under    the

Guidelines,      demonstrate       that     the     Booker    error     affected     his

substantial rights.

      The   government      argues     that       the    statements     made   by    the

district court, while sympathetic, do not indicate a desire to

sentence Barahona-Mejia outside the applicable Guideline range or

otherwise criticize the Guidelines-mandated result.                     Instead, the

government      argues    that     Barahona-Mejia           has   misconstrued       the

district court’s concern with his citizenship status as a desire

to impose a lesser sentence, and notes that the district court

did not respond to a suggestion by Barahona-Mejia’s counsel that

the court impose a lesser sentence so that he could return to

Honduras to find work.




                                            3
       In    reviewing       a    claim        of     Booker         error,     we       consider

“statements of the sentencing judge that suggest a lower sentence

would be imposed under an advisory system.”                           See United States v.

Rodriguez-Gutierrez, 428 F.3d 201, 203-04 (5th Cir. 2005).                                      In

doing so, we also consider the “relationship between the actual

sentence imposed        and      the    range       of    sentences      provided         by   the

Guidelines.”        Id. at 204.         “[S]entences falling at the absolute

minimum of the Guidelines provide the strongest support for the

argument that the judge will have imposed a lesser sentence.”

Id.     Although that fact alone will not establish that the Booker

error    affected      the   defendant’s            substantial        rights,       a   minimum

sentence is “highly probative, when taken together with relevant

statements by the sentencing judge indicating disagreement with

the   sentence      imposed,      that    the        Booker      error    did       affect     the

defendant’s substantial rights.”                    Id.

       Rather than speculate about the meaning of the district

court’s sympathetic comments to Barahona-Mejia, and whether he

would have imposed a shorter sentence had he understood that he

was   free     to   consider     such     a    sentence,         and     in    light      of   the

sentence imposed at the bottom of the applicable Guideline range,

we    REMAND    for    the    limited     purpose          of    consideration            by   the

district     court     of    whether      it       wishes       to    impose    a    different

sentence under the now-advisory Sentencing Guidelines. If the

district       court   elects      to     resentence            the    defendant,         it    is


                                               4
authorized   to     vacate   its   original    sentence   and   proceed    to

resentence defendant under Rule 32 F.R.C.P.               If the district

court decides not to resentence the defendant and enters an order

reflecting   this    decision,     the   court’s   original   sentence   will

stand.

     SENTENCE AFFIRMED; CASE REMANDED FOR DISPOSITION CONSISTENT

WITH THIS OPINION.




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