United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-40098
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELMER MOISES PARAJON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1350-ALL
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Elmer Moises Parajon appeals his guilty-plea conviction and
sentence for being illegally present in the United States following
removal. He argues that the district court committed reversible
Fanfan1 error under United States v. Booker, 543 U.S. 220 (2005),
by sentencing him (prior to Booker) pursuant to a mandatory
*
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opinion should not be published and is not precedent except under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
See United States v. Walters, 418 F.3d 461, 463-64 (5th
Cir. 2005).
application of the Sentencing Guidelines. The Government asserts
that he invited the Fanfan error or waived his claim by requesting
a sentence at the low end of the guidelines range.
As this court has construed comments of defense counsel
narrowly in applying the invited error doctrine, the Government has
not shown that Parajon invited the Fanfan error. See United States
v. Green, 272 F.3d 748, 754-756 (5th Cir. 2001). Furthermore, as
the record does not indicate that Parajon intentionally
relinquished his Fanfan claim, the Government has not shown that
Parajon has waived the claim. See United States v. Reyes-
Celestino, ___ F.3d ___ (slip op. 1873; No. 05-40368, 5th Cir. Mar.
17, 2006) (express consent “to be sentenced pursuant to the
applicable Sentencing Guidelines” not waiver of Fanfan error);
United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002).
As the Government concedes, Parajon preserved his Fanfan claim
for review by raising an objection based upon Blakely v.
Washington, 542, U.S. 296 (2004), in the district court. See
Walters, 418 F.3d at 462-63.2 Accordingly, the question before us
“is whether the government has met its burden to show harmless
error.” Id. at 464.
The district court erred by sentencing Parajon pursuant to a
2
At rearraignment, at which Parajon’s plea was accepted, the
court assured counsel that objections to sentencing enhancements
under Blakely were preserved.
2
mandatory application of the Guidelines. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert. denied, 126
S.Ct. 267 (2005). After granting his request for a downward
departure in criminal history category from V to IV (reducing his
guideline range from 46 to 57 months to 37 to 46 months), the
district court sentenced Parajon to 40 months, near the middle of
the thus calculated guidelines range, and refused Parajon’s request
to further reduce the sentence but gave no indication as to the
sentence it would impose if the Guidelines were held
unconstitutional or advisory. In these circumstances, the
Government has not met its “arduous burden” of showing that the
error was harmless. United States v. Garza, 429 F.3d 165, 170 (5th
Cir. 2005) (internal quotation marks omitted). Accordingly, we
vacate Parajon’s sentence and remand to the district court for
resentencing.
Parajon’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Parajon contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would
overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530
U.S. 466 (2000), we have repeatedly rejected such arguments on the
basis that Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S.Ct.
298 (2005). Parajon properly concedes that his argument is
3
foreclosed in light of Almendarez-Torres and circuit precedent, but
he raises it here to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING.
4