                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              June 16, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ____________________                      Clerk

                           No. 04-41730
                         Summary Calendar
                       ____________________


     UNITED STATES OF AMERICA

                Plaintiff - Appellee

          v.

     MARIO HUMBERTO VASQUEZ-CASTANEDA

               Defendant - Appellant
_________________________________________________________________

          Appeal from the United States District Court
                for the Southern District of Texas
                        No. 2:04-CR-301-ALL
_________________________________________________________________

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Mario Humberto Vasquez-Castaneda appeals

the sentence imposed as a result of his guilty plea to one count

of being unlawfully present in the United States following

deportation in violation of 8 U.S.C. § 1326(a), (b).      For the

following reasons, we VACATE Vasquez’s sentence and REMAND for

resentencing in light of the Supreme Court’s decision in United


     *
        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that this opinion should not be published and is not precedent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-
States v. Booker, 543 U.S. 220 (2005).

               I.   FACTUAL AND PROCEDURAL BACKGROUND

     On July 16, 2004, Mario Humberto Vasquez-Castaneda

(“Vasquez”) pleaded guilty without the benefit of a plea

agreement to one count of being present in the United States

following deportation in violation of 8 U.S.C. § 1326(a), (b).

The presentence report (“PSR”) assessed a based offense level of

eight under U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2004)

[hereinafter U.S.S.G.], recommended a twelve-level increase under

U.S.S.G. § 2L1.2(b)(1)(B) based on two previous drug trafficking

convictions, and recommended a three-level decrease for

acceptance of responsibility under U.S.S.G. § 3E1.1, yielding a

total offense level of seventeen.      With a criminal history

category of IV, Vasquez’s applicable guideline range was thirty-

seven to forty-six months imprisonment followed by two to three

years of supervised release.

     Vasquez objected to the PSR, asserting that the twelve-level

enhancement and his criminal history could not be considered in

light of Blakely v. Washington, 542 U.S. 296 (2004), because his

prior convictions were not authorized by a jury verdict.        He also

contended that Almendarez-Torres v. United States, 523 U.S. 224

(1997), was wrongly decided and should be overruled.      The

district court adopted the recommendations in the PSR over

Vasquez’s objections and sentenced Vasquez to forty-three months



                                 -2-
in prison followed by three years of supervised release.        The

criminal judgment was entered on November 2, 2004.

     On December 9, 2004, Vasquez submitted a pro se hand-written

letter to the clerk of the district court, asking whether a

timely notice of appeal had been filed by counsel consistent with

his desire to appeal the judgment imposing his sentence.1          See R.

at 10.    A defendant in a criminal case must file a notice of

appeal within ten days of entry of the judgment.     FED. R. APP. P.

4(b)(1)(A).    Because the district court entered judgment on

November 2, 2004, the final day for filing a timely notice of

appeal was November 17, 2004.    FED. R. APP. P. 26(a)(2).    On

February 11, 2005, this court remanded to the district court for

a determination of whether the untimely filing of the notice of

appeal was due to excusable neglect or good cause.     See FED. R.

APP. P. 4(b)(4) (allowing the district court to extend the time

to file a notice of appeal for “a period not to exceed 30 days

from the expiration of the time otherwise prescribed by this Rule

4(b)”).    On March 15, 2005, the district court found good cause

for granting Vasquez’s request for an extension of time to file a

notice of appeal based on the totality of the record.        Because

the district court deemed Vasquez’s notice of appeal to be


     1
        Although Vasquez was represented by counsel during his
proceedings before the district court, he appears pro se before
this court on appeal. On remand, the district court may wish to
inquire whether Vasquez wants counsel in connection with his
resentencing.

                                 -3-
effective, we now turn to the merits of his appeal.

                      II.   STANDARD OF REVIEW

     Although the parties appear to agree that this court should

review the case for plain error, this court is not bound by the

parties’ assertion of the appropriate standard of review.       See

United States v. Vonsteen, 950 F.2d 1086, 1091 (5th Cir. 1992)

(en banc) (“No party has the power to control our standard of

review. . . . If neither party suggests the appropriate standard,

the reviewing court must determine the proper standard on its

own[.]”).   It is undisputed that Vasquez raised a challenge under

Blakely v. Washington, 542 U.S. 296 (2004), to the calculation of

his sentence under the Sentencing Guidelines.    We have previously

held that such an objection preserves a Booker or Fanfan error.

See United States v. Rodriguez-Mesa, 443 F.3d 397, 404 (5th Cir.

2006) (noting that raising a Blakely objection in the district

court preserves Booker or Fanfan error on appeal).    We have

determined that the claim preserved here is more properly

characterized as Fanfan error, as opposed to Booker error.       See

United States v. Robles-Vertiz, 442 F.3d 350, 352 n.4 (5th Cir.

2006) (“This case presents what we have termed Fanfan error

because the district court sentenced [the defendant] pursuant to

a mandatory guidelines system.”) (citing United States v.

Walters, 418 F.3d 461, 463-64 (5th Cir. 2005)).2   When there is a

     2
        As in Robles-Vertiz, it is clear that there was no
“Booker” error or Sixth Amendment violation in this case because

                                 -4-
preserved Fanfan claim, as here, “the only question is whether

the government has met its burden to show harmless error beyond a

reasonable doubt in the imposition of [the defendant’s]

sentence.”   Walters, 418 F.3d at 464; see also Rodriguez-Mesa,

443 F.3d at 404.   Unless the government meets its burden under

the harmless error analysis, this court will “ordinarily vacate

the sentence and remand” if the defendant preserved his Fanfan

claim in the district court.     United States v. Mares, 402 F.3d

511, 520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

                          III.   DISCUSSION

     Vasquez argues that the district court erred in sentencing

him under a mandatory guidelines regime, in violation of United

States v. Booker, 543 U.S. 220 (2005).    For reasons not entirely

clear from the record, however, Vasquez specifically declined to

order a transcript of his sentencing proceedings for this

appeal.3   R. at 20; see also FED. R. APP. P. 10(b)(1)(b) (providing

that the appellant may, in lieu of ordering a transcript from the

reporter, “file a certificate stating that no transcript will be


the only enhancement to the sentence was for Vasquez’s prior drug
trafficking convictions. See Robles-Vertiz, 442 F.3d at 352,
n.4; see also Booker, 543 U.S. at 224 (reaffirming that “[a]ny
fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt”) (emphasis added).
     3
        It is not clear whether Vasquez was aware of his right to
transcripts at the government’s expense when he proceeded pro se
and in forma pauperis on appeal. See 28 U.S.C. § 753(f).

                                 -5-
ordered”).   The government could have moved to supplement the

record on appeal with a copy of the sentencing transcript even

though Vasquez had failed to request it.    See FED. R. APP. P.

10(e)(2) (stating that the parties can stipulate to a

supplemental record if relevant material to either party was

omitted “by error or accident”).   Instead, the government,

operating under the erroneous belief that Vasquez had not

preserved his Fanfan error by raising a Blakely objection before

the district court, contends that Vasquez cannot identify “an

indication in the record from the judge’s remarks or otherwise

that the judge would have reached a different conclusion in an

advisory regime” under the plain error standard of review.        Gov’t

Br. at 7.    Under the harmless error analysis applied to preserved

Fanfan errors, however, we have previously rejected this argument

because it is the government that must meet its burden of

demonstrating that the district court would have imposed the same

sentence even under an advisory guidelines regime.

     Although this argument would be persuasive under plain-
     error review, this argument fails to show that the
     preserved error was harmless. It is the government that
     must show that the sentencing judge would have imposed
     the same sentence under an advisory sentencing scheme.
     The judge’s silence as to whether or not he would have
     imposed a different sentence under an advisory regime
     does not satisfy this burden. If we were to accept this
     argument to find that the error was harmless, we would
     effectively be relieving the government of its burden and
     placing it on the defendant.

United States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005); see

also United States v. Woods, 440 F.3d 255, 261 (5th Cir. 2006)

                                 -6-
(“[The defendant’s] inability to point to evidence in the record

that the district court would have imposed a different sentence

is irrelevant under harmless error analysis.   Because it is

unclear whether the district court would have imposed the same

sentence, the error cannot be considered harmless.”).4

Accordingly, we conclude that the government has not met its

burden of proving harmless error beyond a reasonable doubt.

     Vasquez also challenges the constitutionality of 8 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).   As Vasquez’s concedes in his brief,

this argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998), in which the Supreme Court held

that treatment of prior convictions as sentencing factors under

§ 1326(b)(1) and (2) was constitutional.   “This court has

repeatedly rejected arguments like the one made by [Vasquez] and

has held that Almendarez-Torres remains binding despite

     4
        We similarly reject the government’s implication that the
district court’s imposition of a sentence in the middle of the
guidelines range somehow satisfies its burden of demonstrating
harmless error beyond a reasonable doubt. Cf. United States v.
Garza, 429 F.3d 165, 170-71 (5th Cir. 2005) (noting, in a case
reviewing an unpreserved Booker error under a plain error
standard of review, that “this Circuit has rejected the claim
that a court’s decision to sentence in the middle of a Guidelines
range establishes Booker error as harmless”) (citing United
States v. Yancey, 2005 WL 1608590, at *1 (5th Cir. July 11, 2005)
(unpublished) (per curiam); United States v. Benavides, 2005 WL
2055884, at *1 (5th Cir. Aug. 26, 2005) (unpublished)).

                                -7-
Apprendi.”   United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005).   We therefore decline

to address this issue at any greater length on this appeal.

                          IV.   CONCLUSION

     For the foregoing reasons, we VACATE Vasquez’s sentence and

REMAND for resentencing under the advisory guidelines regime.




                                 -8-
