[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 7, 2005
No. 04-15357 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-20282-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO MARINO VARGAS-VASQUEZ,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(September 7, 2005)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Francisco Marino Vargas-Vasquez appeals his 41-month sentence for illegal
re-entry, in violation of 8 U.S.C. § 1326(a). We VACATE and REMAND.
I. BACKGROUND
A federal grand jury indicted Vargas-Vasquez on one count of unlawfully
attempting to enter the United States after previously having been deported, in
violation of 8 U.S.C. § 1326(a) and (b)(2). Pursuant to a plea agreement, he pled
guilty to the charge. The presentence investigation report (“PSI”) calculated
Vargas-Vasquez’s base offense level as eight, pursuant to U.S.S.G. § 2L1.2.
Because Vargas-Vasquez previously had been deported for a drug trafficking
offense for which the sentence exceeded thirteen months, he received a 16-level
increase, pursuant to § 2L1.2(b)(1)(A)(i). He also received a three-level reduction
for acceptance of responsibility. Vargas-Vasquez’s total offense level was 21, and
his criminal history category was III. Accordingly, Vargas-Vasquez’s guideline
imprisonment range was 46 to 57 months of imprisonment.
Vargas-Vasquez’s counsel filed two written objections to the PSI that are
relevant here. First, his counsel objected to the use of Vargas-Vasquez’s prior
drug trafficking convictions to establish his maximum sentence and guideline
range. Specifically, Vargas-Vasquez’s counsel argued that Vargas-Vasquez’s
indictment did not allege that his previous deportation was subsequent to a
conviction for a drug trafficking offense resulting in a sentence of 13 months or
more, and that Vargas-Vasquez was charged with violation of 8 U.S.C. § 1326(a),
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which imposes a maximum penalty of two years, not with the “distinct, aggravated
crime set forth separately in 8 U.S.C. § 1326(b).” R1-18 at 8. His counsel
contended that the indictment referenced § 1326(b)(2) but failed to contain the
elements of that offense. Accordingly, Vargas-Vasquez’s counsel argued that the
district court could not impose permissibly a sentence in excess of two years
because Vargas-Vasquez’s offense of conviction carried that maximum. Although
conceding that the Supreme Court, in Almendarez-Torres v. United States, 523
U.S. 224, 118 S. Ct. 1219 (1998), had previously rejected his argument, Vargas-
Vasquez’s counsel contended that the Supreme Court recently has called into
question its holding in that case. Second, Vargas-Vasquez’s counsel argued that,
based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the district
court could not consider Vargas-Vasquez’s two prior drug convictions in
calculating either his offense level or his criminal history category because they
were not alleged in the indictment, admitted in his guilty plea, or proven beyond a
reasonable doubt to a jury.
At the sentencing hearing, Vargas-Vasquez’s counsel raised one objection
relevant here. He objected to the use of Vargas-Vasquez’s prior convictions both
to establish his offense level and to establish the criminal history category because
they were neither charged in the indictment nor admitted by Vargas-Vasquez.
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Citing United States v. Marseille, 377 F.3d 1249 (11th Cir. 2004), cert. denied,
___ U.S. ___, 1255 S. Ct. 637 (2004), the district court overruled Vargas-
Vasquez’s objection.
Noting that, prior to “9/11,” “the government used to exercise discretion in
deciding who[m] to prosecute for illegal re-entry,” the district court stated that it
“wish[ed] the executive branch would go back to exercising some discretion.” R3
at 20. The district court then stated that it intended to impose a sentence “at the
bottom of the Guideline range,” id. at 20, and sentenced Vargas-Vasquez to 41
months of imprisonment.
II. DISCUSSION
On appeal, Vargas-Vasquez’s counsel contends on his behalf that the
district court erred under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005), by sentencing him under a mandatory guidelines scheme.1 In response, the
government concedes that the district court committed statutory Booker error and
that this case should be remanded for re-sentencing.
1
Additionally, Vargas-Vasquez avers that Booker overruled our holding in Marseille that
Almendarez-Torres is still binding Supreme Court precedent. Marseille, 377 F.3d at 1257. This
argument has no merit. In United States v. Camacho-Ibarquen, a case decided after Booker, we
noted that we must continue to follow Almendarez-Torres until it is explicitly overruled by the
Supreme Court. 410 F.3d 1307, 1316 n.3 (11th Cir. 2005) (per curiam).
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Because Vargas-Vasquez’s counsel objected to the district court’s use of
Vargas-Vasquez’s convictions to enhance his sentence, when they were neither
charged in the indictment nor admitted by Vargas-Vasquez, Vargas-Vasquez
preserved his Booker claim. Thus, we review his Booker claim to determine
whether any error was harmless. United States v. Mathenia, 409 F.3d 1289, 1291
(11th Cir. 2005) (per curiam). “A non-constitutional error is harmless if, viewing
the proceedings in their entirety, a court determines that the error did not affect the
[sentence], ‘or had but very slight effect.’ If one can say ‘with fair
assurance . . . that the [sentence] was not substantially swayed by the error,’ the
[sentence] is due to be affirmed even though there was error.” Id. at 1292 (citation
omitted) (alteration in original).
In this case, the government cannot show that the district court’s statutory
sentencing error, under Booker, did not affect Vargas-Vasquez’s sentence. Thus,
we vacate and remand for resentencing.
III. CONCLUSION
Because the government cannot meet its burden of proving that the district
court’s statutory Booker error was harmless, we VACATE and REMAND for
resentencing.
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