United States v. Gaona-Rodriguez , 144 F. App'x 405 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 9, 2005
_______________________ Charles R. Fulbruge III
Clerk
NO. 04-41081
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
POLO GAONA-RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
5:04-CR-00497
Before DAVIS, JONES, and GARZA, Circuit Judges.
PER CURIAM:*
Polo Gaona-Rodriguez (“Gaona”) challenges his sentence
following his guilty plea for illegal reentry. Because Gaona
properly preserved his objection to the district court’s use of the
mandatory sentencing guidelines regime, we AFFIRM the conviction
but VACATE and REMAND for resentencing in accordance with the post-
Booker sentencing regime.
*
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opinion should not be published and is not precedent except under the limited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.
BACKGROUND
Gaona pleaded guilty to illegal reentry following
deportation and was sentenced to a term of imprisonment of forty-
six months to be followed by a three-year term of supervised
release. The presentence report (PSR) recommended that Gaona’s
base offense level of 8 be increased by sixteen levels because he
had a prior conviction for the transportation of illegal aliens,
aiding and abetting. He received a three-level reduction of his
offense level for the acceptance of responsibility resulting in a
total offense level of 21. Based on a criminal history category of
III and an offense level of 21, Gaona’s guideline sentencing range
was forty-six to fifty-seven months.
During the sentencing hearing, Gaona objected to the
sixteen-level enhancement based on a violation of the Sixth
Amendment and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004). The district court stated that the Blakely issue was
preserved for appellate review and overruled the objection.
Prior to the sentence being imposed, defense counsel
argued that Gaona’s criminal history consisted of one misdemeanor
illegal reentry conviction and a conviction for transporting
illegal aliens. With respect to the “alien smuggling” conviction,
counsel argued that Gaona was told that if he guided some other
aliens through the woods to their vehicle, he would not have to pay
for his own trip. Counsel argued that in light of Gaona’s minimal
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criminal history, the large increase in his offense level for his
prior conviction placed him in a higher guideline sentencing range
than fairness dictated.
The district court responded, “It’s the prior conviction
for the transporting illegal aliens that ratchets him up.”
The district court imposed the minimum guideline sentence. Gaona
filed a timely notice of appeal.
DISCUSSION
Little discussion is warranted in this case. Gaona’s
claims of error relate to the imposed sentence. The Government
concedes that Gaona properly preserved his claim under United
States v. Booker, 125 S. Ct. 738 (2005), by raising an objection
under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004),
at sentencing, and further concedes that the error was not
harmless.1 This concession is appropriate, as our caselaw
interpreting Booker has recognized even an Apprendi objection as
sufficient to preserve Sixth Amendment error. See United States v.
Pineiro, 410 F.3d 282, 285 n.1 (5th Cir. 2005) (noting that raising
an Apprendi-based objection was sufficient to preserve both a
Blakely error and a Booker error); see also United States v. Okoro,
407 F.3d 360, 375-76 (5th Cir. 2005) (finding that repeated
objections to the district court’s loss calculation method
sufficient to preserve Booker error even where defendant did not
1
As the Government further concedes the error is not harmless, we will
not conduct a harmless error analysis here.
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specifically cite the Sixth Amendment, Apprendi, or Blakely).
Apprendi error formed the basis for Blakely as well as Booker, so
Gaona properly preserved the claim of error by invoking Blakely at
sentencing. His sentence therefore must be vacated and remanded
for resentencing in accordance with Booker.
In so doing, we observe that Gaona concedes his two
contentions based on the sixteen-level enhancement for an “alien
smuggling offense” and on the unconstitutionality of 8 U.S.C.
§ 1326(b) are foreclosed by prior precedent in this circuit.
United States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002)
(construing U.S.S.G. § 2L1.2(b)(1)(A)(vii); U.S. v. Rodriguez-
Montelongo, 263 F.3d 429, 434 (5th Cir. 2001) (§ 1326(b)).
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
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