                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 2, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-41695
                           Summary Calendar



                     UNITED STATES OF AMERICA,

                          Plaintiff-Appellee,

                                versus

                          RHONDA JEAN GAINER,

                       Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1452-ALL
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     A jury convicted Rhonda Jean Gainer of possession with intent

to distribute less than 50 kilograms of marijuana.      The district

court refused a downward departure and sentenced Gainer to 27

months of imprisonment.    Gainer appeals.

     Gainer contends for the first time on appeal that 21 U.S.C.

§ 841 is facially unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).      She concedes that her argument is

foreclosed by United States v. Slaughter, 238 F.3d 580, 582 (5th


     *
       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this opinion should not be published and is not precedent except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.
                                No. 04-41695
                                     -2-

Cir.    2000)    (holding     that   Apprendi    did    not   render   §   841

unconstitutional).      Gainer raises the argument only to preserve it

for possible future review; it provides no basis for relief.

       Gainer contends that the evidence was insufficient to prove

she knew marijuana was concealed in the van she owned and was

driving     at   the   time    the   marijuana    was    discovered.       The

circumstantial evidence, viewed with its reasonable inferences in

a light favorable to the verdict, supported the jury’s conclusion

that Gainer was aware of the concealed marijuana.             See Jackson v.

Virginia, 443 U.S. 307, 319 (1979). The evidence included Gainer’s

dubious explanation for her almost 4000-mile round trip from

Peoria, Illinois, to Guadalajara, Mexico, over the space of just a

few days, and substantial and obvious alterations made to the van

made in order to accommodate the marijuana.             See United States v.

Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir. 2002) (incredible

explanations); United States v. Ortega Reyna, 148 F.3d 540, 544

(5th Cir. 1998) (obvious alterations).           Because the evidence was

sufficient to establish her guilty knowledge, her conviction is

affirmed.

       Gainer contends that her sentence was based on an unproven

drug quantity and imposed under mandatory Sentencing Guidelines in

violation of the Sixth Amendment and United States v. Booker, 543

U.S. 220, 125 S. Ct. 738 (2005).           Gainer failed to raise these

challenges in the district court; review is for plain error.               See

United States v. Cruz, 418 F.3d 481, 483 (5th Cir. 2005).              We need
                                       No. 04-41695
                                            -3-

not address whether there was plain Sixth Amendment error with

respect to drug quantity, because we find that, in light of Booker,

the   district     court        committed       an     obvious    “Fanfan”     error    by

sentencing Gainer under mandatory Guidelines. See United States v.

Cruz,   418   F.3d    481,       484     (5th    Cir.    2005);     United    States    v.

Valenzuela-Quevedo, 407 F.3d 728, 733; see also Booker, 125 S. Ct.

at 756-57 (rendering Guidelines advisory).

      Gainer has demonstrated a sufficient probability that the

district court would have imposed a lesser sentence under advisory

Guidelines.      See Cruz, 418 F.3d at 485.                  In denying a downward

departure, the district court agreed with Gainer that her family

circumstances were “unusual” and “certainly serious,” and the court

expressed its compassion for her family.                   The record suggests that

the court     nonetheless         felt    it     was    precluded    from    granting    a

departure     by     the        guideline        requirement      that       the   family

circumstances be “exceptional.”                  See U.S.S.G. §5K2.0(a)(4).             In

addition, the sentence at the absolute minimum of the guideline

range supports an argument that the district court would have

imposed a lesser sentence but for mandatory guideline restrictions.

See United States v. Rodriguez-Gutierrez, 428 F.3d 201, 205 (5th

Cir. 2005).

      Accordingly,         we     vacate        the    sentence     and      remand    for

resentencing under advisory Guidelines.                   See Cruz, 418 F.3d at 485

(finding plain Fanfan error where district court imposed the

minimum sentence and denied a downward departure while explaining
                               No. 04-41695
                                    -4-

that   to   depart    the   court   would    have    “to   deviate    from   the

impositions” of the Guidelines).            We “leave to the discretion of

the district court” whether to grant a downward departure or to

reassess the significance of drug-quantity evidence.                 See United

States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

       CONVICTION     AFFIRMED;     SENTENCE        VACATED;   REMANDED      FOR

       RESENTENCING
