United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 6, 2006
Charles R. Fulbruge III
Clerk
No. 03-51087
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN BELEN CASTANEDA-BARRIENTOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-03-CR-47-1 AML
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before Higginbotham and Davis, Circuit Judges.*
PER CURIAM:**
This court affirmed the judgment of conviction and sentence
of Juan Belen Castaneda-Barrientos. United States v. Castaneda-
Barrientos, No. 03-51087 (5th Cir. Aug. 18, 2004) (unpublished).
The Supreme Court vacated and remanded for further consideration
in light of United States v. Booker, 125 S. Ct. 738 (2005).
Castaneda-Barrientos v. United States, 125 S. Ct. 1077 (2005).
*
This appeal is being decided by a quorum due to the
retirement of Judge Pickering. 28 U.S.C. § 46(d).
**
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this opinion should not be published and is not precedent except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. 03-51087
-2-
We requested and received supplemental letter briefs addressing
the impact of Booker.
Castaneda argues that his sentence is unconstitutional under
Booker because the district court imposed his sentence based on a
factual finding that his prior conviction for transporting
illegal aliens was an alien smuggling offense “for profit.” The
Government concedes Booker error and that the error is not
harmless. However, the Government argues the issue was not
preserved in the district court in order to be subject to
harmless-error review.
A defendant is not required to specifically reference the
Sixth Amendment, Apprendi v. New Jersey, 530 U.S. 466 (2000), or
Blakely v. Washington, 542 U.S. 296 (2004), to preserve a Booker
error. United States v. Olis, F.3d , No. 04-20322, 2005
WL 2842077 *3 (5th Cir. Oct. 31, 2005). If a defendant voices
repeated objections sufficient to apprise the sentencing court
that he is raising a constitutional claim with respect to
judicial fact-finding in the sentencing process, the error is
preserved. Id. Castaneda referenced Apprendi and specifically
stated that he was challenging the constitutionality of the
court’s fact-finding regarding his prior conviction for an alien
smuggling offense. Thus, the issue is preserved.
Because the Government concedes a Sixth Amendment error in
violation of Booker that is not harmless, the judgment of
No. 03-51087
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conviction is REINSTATED, the sentence is VACATED, and the matter
is REMANDED for resentencing.