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

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                 No. 04-41683
                               Summary Calendar



UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

EZEQUIEL LUIS AGUILAR-GARCIA,

                                             Defendant-Appellant.

                             --------------------
                 Appeal from the United States District Court
                      for the Southern District of Texas
                              (5:04-CR-1084-ALL)
                             --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

           Defendant-Appellant Ezequiel Luis Aguilar-Garcia (Aguilar)

appeals the sentence imposed following his guilty-plea conviction

for    being      illegally   present   in   the   United   States    following

deportation. As his sole point of error on appeal, Aguilar asserts

that       the   district   court   committed   reversible    error    when    it

sentenced him pursuant to a mandatory application of the Sentencing

Guidelines held unconstitutional in United States v. Booker, 543

U.S. 220 (2005).


       *
       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this opinion should not be published and is not precedent except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.
    The district court committed “Fanfan error” when it sentenced

Aguilar pursuant to a mandatory application of the Sentencing

Guidelines. See United States v. Valenzuela-Quevedo, 407 F.3d 728,

733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005).    We review a

preserved Fanfan challenge for harmless error.    See United States

v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).   Under the harmless-

error standard, the government bears the “arduous burden” of

proving beyond a reasonable doubt that the district court would not

have sentenced the defendant differently under an advisory-only

guideline scheme.     Id. at 464; United States v. Garza, 429 F.3d

165, 170 (5th Cir. 2005) (quotation and citation omitted).

     We have rejected the argument that a “sentence in the middle

of a Guidelines range establishes Booker error as harmless.”

Garza, 429 F.3d at 171.    We have also rejected the notion that a

district court’s refusal to grant a downward departure establishes

harmlessness.   Id.    Although the sentencing court did note that

Aguilar had several immigration violations, it gave no indication

that it would have imposed the same sentence under an advisory

scheme.   Accordingly, we VACATE Aguilar’s sentence and REMAND the

case for resentencing.    See Garza, 429 F.3d at 171.




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