United States v. Beng-Salazar ( 2006 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                  No. 04-50518
    Plaintiff-Appellee,
    v.                            D.C. No.
    CR-04-00482-NAJ
    JESUS ADRIAN BENG-SALAZAR,
    OPINION
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Southern District of California
    Napoleon A. Jones, District Judge, Presiding
    Argued and Submitted
    October 21, 2005—Pasadena, California
    Filed July 6, 2006
    Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,
    and Richard A. Paez, Circuit Judges.
    Opinion by Judge Paez
    7479
    UNITED STATES v. BENG-SALAZAR            7481
    COUNSEL
    Ellis M. Johnston, III, Federal Defenders of San Diego, Inc.,
    San Diego, California, for the defendant-appellant.
    7482            UNITED STATES v. BENG-SALAZAR
    Christopher P. Tenorio, Assistant United States Attorney, San
    Diego, California, for the plaintiff-appellee.
    OPINION
    PAEZ, Circuit Judge:
    Jesus Adrian Beng-Salazar (“Beng”) appeals his conviction
    and sentence for illegal reentry into the United States in viola-
    tion of 8 U.S.C. § 1326. In a separate memorandum, we
    affirm Beng’s conviction. In this opinion, we consider Beng’s
    arguments that his sentence violated the Sixth Amendment
    and ran afoul of the Supreme Court’s decision in United
    States v. Booker, 
    543 U.S. 220
    (2005). Beng was sentenced
    under the now-defunct mandatory Guidelines regime. We
    hold that Beng’s timely Sixth Amendment objections, based
    on Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), and Blakely
    v. Washington, 
    542 U.S. 296
    (2004), were sufficient to pre-
    serve his Booker challenge to the court’s imposition of his
    sentence using the erstwhile mandatory Guidelines. We
    vacate Beng’s sentence and remand for resentencing under the
    now-advisory Guidelines system.
    I.   Background
    In July 2004, a jury found Beng guilty of illegal reentry. At
    the time of his sentencing in October 2004, the Supreme
    Court had decided Apprendi and Blakely, but not Booker. In
    Apprendi, the Court held that “[o]ther than the fact of a prior
    conviction, any fact that increases the penalty for a crime
    beyond the prescribed statutory maximum must be submitted
    to a jury, and proved beyond a reasonable 
    doubt.” 530 U.S. at 490
    . In Blakely, the Court relied on Apprendi to hold that
    Washington State’s sentencing procedure violated the Sixth
    Amendment because it permitted a defendant to be sentenced
    above a standard sentencing range based on facts not found by
    UNITED STATES v. BENG-SALAZAR              7483
    a jury beyond a reasonable 
    doubt. 542 U.S. at 301-05
    . It was
    not until January 2005, however, that the Court in Booker
    held that “the Sixth Amendment as construed in Blakely does
    apply to the [federal] Sentencing 
    Guidelines,” 543 U.S. at 226-27
    , and crafted the remedy of converting the mandatory
    federal Sentencing Guidelines into advisory guidelines, 
    id. at 245.
    Beng’s Presentence Report (“PSR”) recommended an
    increase in Beng’s base offense level by sixteen levels, based
    on the fact that he was previously deported following a con-
    viction for a crime of violence. See U.S.S.G. § 2L1.2(b)(1)
    (A)(ii). The PSR also recommended that Beng be placed in
    Criminal History Category III, based on a calculation of five
    criminal history points. Relying on Apprendi and Blakely,
    Beng argued to the district court that these recommendations
    would violate his Sixth Amendment right to have a jury deter-
    mine any facts that increased the maximum sentence he could
    receive. Beng made three arguments.
    First, Beng asserted that Almendarez-Torres v. United
    States, 
    523 U.S. 224
    (1998), which excepts prior convictions
    from Apprendi’s general rule, effectively has been overruled.
    Second, Beng attempted to distinguish Almendarez-Torres
    from his case, arguing that it applies only to cases where a
    defendant admits the fact of his prior conviction. Third, Beng
    objected on Sixth Amendment grounds to the district court’s
    consideration of his prior convictions in calculating his Crimi-
    nal History Category.
    The district court rejected Beng’s arguments. Relying on its
    finding that Beng had been deported subsequent to a convic-
    tion for a crime of violence, the court increased Beng’s
    offense level by sixteen levels. The court also found that Beng
    was in Criminal History Category III. With an adjusted
    offense level of twenty-four, the court calculated Beng’s
    Guideline range to be sixty-three to seventy-eight months.
    The district judge sentenced Beng to seventy months in prison
    7484              UNITED STATES v. BENG-SALAZAR
    followed by three years of supervised release. Beng timely
    appealed.
    II.   Discussion
    A.   Challenges to Almendarez-Torres and 8 U.S.C.
    § 1326(b)
    [1] We first dispose of two of Beng’s sentencing chal-
    lenges, which are foreclosed by our case law. Under
    § 1326(b)(2), the maximum penalty for illegal reentry is
    increased from two years to twenty years in prison if the
    defendant was previously removed subsequent to a conviction
    for an aggravated felony.1 In Almendarez-Torres, the Supreme
    Court held that “subsection [(b) of 8 U.S.C. § 1326] is a pen-
    alty provision, which simply authorizes a court to increase the
    sentence for a recidivist. It does not define a separate crime.
    Consequently, neither the statute nor the Constitution requires
    the Government to charge the factor that it mentions, an ear-
    lier conviction, in the 
    indictment.” 523 U.S. at 226-27
    .
    On appeal, Beng abandons his claim that Almendarez-
    Torres implicitly has been overruled by subsequent Supreme
    Court precedent, but renews his argument that recent deci-
    sions of the Supreme Court limit Almendarez-Torres’s hold-
    ing to cases where a defendant has admitted his prior
    convictions during a guilty plea. He cites Shepard v. United
    States, 
    544 U.S. 13
    (2005), and Dretke v. Haley, 
    541 U.S. 386
    (2004), in support. Because Beng did not admit his prior con-
    victions, and because they were neither charged in his indict-
    ment nor proved to a jury, he asserts that they could not be
    used to enhance his offense level or calculate his Criminal
    History Category.
    1
    Subsections (b)(1), (3), and (4) increase the maximum penalty to ten
    years in prison if other factors not at issue in Beng’s case apply.
    UNITED STATES v. BENG-SALAZAR               7485
    Beng makes a separate but related argument that 8 U.S.C.
    § 1326(b) is unconstitutional because it permits a judge to
    increase a defendant’s statutory maximum sentence for a
    § 1326 violation from two years to ten or twenty years, in vio-
    lation of Apprendi. In adopting the PSR’s recommendations,
    the court effectively increased Beng’s maximum potential
    sentence to twenty years, based on § 1326(b)(2).
    [2] Our decision in United States v. Rodriguez-Lara, 
    421 F.3d 932
    , 949-50 (9th Cir. 2005), affirming the continued
    validity of Almendarez-Torres and rejecting a challenge to
    § 1326(b), forecloses these arguments. See also United States
    v. Lopez-Torres, 
    443 F.3d 1182
    , 1185 (9th Cir. 2006) (“We
    have repeatedly rejected [the] argument [that subsequent
    cases undermine the holding in Almendarez-Torres], and do
    so again here.”); United States v. Quintana-Quintana, 
    383 F.3d 1052
    (9th Cir. 2004) (reaffirming the constitutionality of
    8 U.S.C. § 1326(b) in the wake of Apprendi and Blakely),
    cert. denied, 
    543 U.S. 1130
    (2005).
    B.   Preservation of Error
    Although Beng’s Sixth Amendment arguments fail, we
    hold that his invocation of them in district court was sufficient
    to preserve a challenge to the nonconstitutional error identi-
    fied in Booker, i.e., the fact that Beng was sentenced under
    the mandatory Guidelines system.
    1.
    Apprendi and its progeny give rise to two interrelated but
    distinct claims of sentencing error. First, a defendant’s Sixth
    Amendment right to a jury trial is infringed if his maximum
    sentence is increased based on facts not proved to a jury
    beyond a reasonable doubt. A defendant who makes this
    claim asserts an error of constitutional magnitude. Second, the
    unique remedy the Supreme Court fashioned in Booker gives
    rise to a different kind of sentencing error. We have held that
    7486            UNITED STATES v. BENG-SALAZAR
    application of the mandatory Guidelines, absent a Sixth
    Amendment violation, constitutes nonconstitutional Booker
    error. United States v. Ameline, 
    409 F.3d 1073
    , 1084 n.8 (9th
    Cir. 2005) (en banc) (“In a case where the district court did
    not treat the sentencing guidelines as advisory but the defen-
    dant’s sentence was not enhanced by extra-verdict findings
    . . . a different, nonconstitutional error occurs.”). In addition
    to his Sixth Amendment claims, Beng argues on appeal that
    he is entitled to resentencing because the district court applied
    the now-invalidated mandatory Sentencing Guidelines to his
    case.
    2.
    A defendant challenging his sentence under Booker might
    be entitled to relief because either (1) his constitutional right
    to have a jury determine facts that enhance his maximum sen-
    tence was abridged, or (2) he was sentenced under the manda-
    tory Guidelines regime. Beng is not entitled to relief on the
    first ground. Beng’s argument that he is entitled to resentenc-
    ing on the second ground requires us to address an issue of
    first impression in this circuit.
    Defendants making either of the above claims for relief can
    preserve their arguments by raising them in the district court.
    Typically, we review preserved errors for harmlessness. See
    Fed R. Crim. P. 52(a); see also United States v. Seschillie, 
    310 F.3d 1208
    , 1214 (9th Cir. 2002) (stating that when a pre-
    served error is not of constitutional magnitude, we “reverse if
    there is a fair assurance of harmlessness, or stated otherwise,
    unless it is more probable than not that the error did not mate-
    rially affect the verdict” (internal quotation marks omitted));
    United States v. Walters, 
    309 F.3d 589
    , 593 (9th Cir. 2002)
    (“The test for determining whether a [preserved] constitu-
    tional error is harmless is whether it appears beyond a reason-
    able doubt that the error complained of did not contribute to
    the verdict obtained.” (internal quotation marks omitted)). We
    review unpreserved errors for plain error. See Fed. R. Crim.
    UNITED STATES v. BENG-SALAZAR                7487
    P. 52(b); see also United States v. Recio, 
    371 F.3d 1093
    , 1100
    (9th Cir. 2004) (stating that we reverse when an unpreserved
    error is plain, affects substantial rights, and “seriously affects
    the fairness, integrity or public reputation of judicial proceed-
    ings” (alteration and internal quotation marks omitted)).
    In Ameline, however, we set forth a unique procedure to
    apply in cases of unpreserved, constitutional Sixth Amend-
    ment Apprendi error. The unpreserved nature of the error in
    Ameline called for plain error analysis, and we adopted an
    anomalous remand procedure to address the substantial rights
    prong of the plain error test. 
    Ameline, 409 F.3d at 1078-85
    .
    Rather than decide for ourselves whether the error affected
    substantial rights, we “remand to the district court to answer
    the question whether the sentence would have been different
    had the court known that the Guidelines were advisory.” 
    Id. at 1079.
    In United States v. Moreno-Hernandez, 
    419 F.3d 906
    , 915-16 (9th Cir.), cert. denied, 
    126 S. Ct. 636
    (2005), we
    extended Ameline’s approach to cases of unpreserved, non-
    constitutional Booker error.
    Ameline and Moreno-Hernandez left open the question of
    what procedure to apply in cases of preserved constitutional
    (i.e., Sixth Amendment) and nonconstitutional (i.e., manda-
    tory application of the Guidelines or Booker) error. In United
    States v. Kortgaard, 
    425 F.3d 602
    (9th Cir. 2005), we
    answered this question for cases of preserved, constitutional
    error. In Kortgaard, we did not order an Ameline remand, but
    instead vacated the sentence and remanded for resentencing
    under the advisory Guidelines system. 
    Id. at 611.
    In United
    States v. Hagege, 
    437 F.3d 943
    , 959 (9th Cir. 2006), we reme-
    died the government’s preserved, nonconstitutional Booker
    error with the same vacate and remand procedure.
    [3] Thus, we order an Ameline remand in cases of unpreser-
    ved constitutional and nonconstitutional error. We vacate and
    remand in cases of preserved constitutional and nonconstitu-
    tional error.
    7488            UNITED STATES v. BENG-SALAZAR
    If Beng did not preserve his challenge to the district court’s
    use of the mandatory Guidelines at his sentencing, his case is
    controlled by Moreno-Hernandez and we will grant a limited
    remand as outlined in Ameline. If, however, Beng preserved
    his challenge, we must vacate his sentence and remand for
    resentencing, provided the error was not harmless. Determin-
    ing whether Beng’s Booker challenge is preserved is thus a
    prerequisite to deciding the proper disposition of his appeal.
    3.
    [4] As it turns out, resolving whether Beng preserved his
    challenge to the court’s mandatory use of the Sentencing
    Guidelines leads us to address an issue of first impression in
    our circuit. Beng repeatedly raised his Sixth Amendment
    claims in his presentencing briefs and at his sentencing hear-
    ing, citing Apprendi and Blakely. But at no point prior to his
    briefing in this court did he explicitly argue that the federal
    Sentencing Guidelines were unconstitutional because of their
    mandatory nature, or that mandatory application of the Guide-
    lines to his case was error. Indeed, to have done so would
    have required foresight of Cassandran proportion. No one pre-
    dicted that the Supreme Court would remedy the Guidelines’
    constitutional infirmity by rendering them advisory. Our own
    court did not anticipate this result. See United States v. Ame-
    line, 
    376 F.3d 967
    (9th Cir. 2004), amended and superceded
    on reh’g by 
    400 F.3d 646
    (9th Cir. 2005), superceded on
    reh’g en banc by 
    409 F.3d 1073
    . It is unlikely that any defen-
    dant would have objected to a judge’s use of mandatory Sen-
    tencing Guidelines, prior to the Supreme Court’s January
    2005 decision in Booker. Were we to require a defendant to
    have made such an objection in order to preserve his noncon-
    stitutional Booker claim, we doubt there would be any cases
    where a defendant preserved a nonconstitutional Booker error
    for us to address.
    [5] We believe that, in these circumstances, the better
    approach is to take a generous view of which objections pre-
    UNITED STATES v. BENG-SALAZAR                       7489
    serve a challenge to a district court’s use of mandatory Sen-
    tencing Guidelines. We hold that Beng’s Sixth Amendment
    objections, made at the time of sentencing and raised under
    and citing to Apprendi and Blakely, are sufficient to preserve
    his Booker claim.
    To the extent they have spoken on this issue, our sister cir-
    cuits uniformly have adopted similar standards for determin-
    ing when a defendant has preserved his challenge to
    mandatory application of the Guidelines to his case. The First,
    Second, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh
    Circuits each have recognized that a defendant’s argument
    that Apprendi or Blakely undermined the federal Guidelines,
    or that he was entitled to have a jury determine the sentencing
    factors in his case, preserved his claim of nonconstitutional
    Booker error. See United States v. Rodriguez-Mesa, 
    443 F.3d 397
    , 404 (5th Cir. 2006) (per curiam) (“Regardless of whether
    Rodriguez-Mesa’s error is characterized as a Booker or Fan-
    fan error, he preserved that error by raising a Blakely objec-
    tion in the district court.”);2 United States v. Rodriguez, 
    433 F.3d 411
    , 415 (4th Cir. 2006) (holding that defendant “prop-
    erly preserved his claim of statutory Booker error by raising
    a timely Blakely objection at sentencing” and noting that the
    court’s “position on this issue is consistent with the unani-
    mous view of the nine courts of appeals to have considered
    the question”); United States v. Geames, 
    427 F.3d 1333
    , 1339
    (10th Cir. 2005) (“Because Defendant made a Blakely objec-
    tion at sentencing, Defendant preserved his Booker argument
    for this appeal.”); United States v. Burke, 
    425 F.3d 400
    , 416
    (7th Cir. 2005) (holding that defendant preserved his Booker
    argument “by objecting to his sentence on the grounds that it
    violated Apprendi”); United States v. Lake, 
    419 F.3d 111
    , 112
    (2d Cir. 2005) (holding that defendant who “objected, on
    2
    Not every circuit uses the terms “constitutional” and “nonconstitution-
    al” or “Booker” error that we have adopted in this circuit. The Fifth Circuit
    refers to “Booker” and “Fanfan” error, respectively. See United States v.
    Walters, 
    418 F.3d 461
    , 463 (5th Cir. 2005).
    7490               UNITED STATES v. BENG-SALAZAR
    Sixth Amendment grounds, to any enhancement of his sen-
    tence based on facts not found by a jury, relying on Apprendi
    . . . and . . . Blakely” preserved his nonconstitutional Booker
    error claim); United States v. Fleck, 
    413 F.3d 883
    , 896 (8th
    Cir. 2005) (stating that a defendant preserves his nonconstitu-
    tional Booker error claim by objecting “based on Apprendi or
    Blakely, or argu[ing] that the guidelines were unconstitution-
    al”); United States v. Mathenia, 
    409 F.3d 1289
    , 1290-91 (11th
    Cir. 2005) (per curiam) (holding that defendant preserved his
    Booker error claim where he argued at sentencing that appli-
    cation of the Guidelines violated the Sixth Amendment, as
    interpreted in Blakely); United States v. Antonakopoulos, 
    399 F.3d 68
    , 76 (1st Cir. 2005) (“The argument that a Booker
    error occurred is preserved if the defendant below argued
    Apprendi or Blakely error or that the Guidelines were unconsti-
    tutional.”).3 The Third and District of Columbia Circuits do
    not appear to have addressed this issue.
    The First Circuit explained the rationale behind this
    approach in United States v. Martins, 
    413 F.3d 139
    , 152 (1st
    Cir.), cert. denied, 
    126 S. Ct. 644
    (2005): “In light of the
    unexpected nature of Booker’s holding that the sentencing
    guidelines must be treated as advisory, we have been fairly
    liberal in determining what sorts of arguments sufficed to pre-
    serve claims of Booker error in pre-Booker cases.” We agree
    with the First Circuit that the unique nature of the remedy in
    Booker could not have been predicted and thus counsels a
    generous interpretation of objections based on the Apprendi
    line of cases that were made prior to Booker.4 In so holding,
    3
    A panel of the Sixth Circuit came to the same conclusion in an unpub-
    lished decision. United States v. Thomas, 138 Fed. Appx. 759, 762 (6th
    Cir. 2005) (unpublished).
    4
    We also agree with the First Circuit that not all objections to a pre-
    Booker Guideline sentence will preserve a claim of Booker error. Rather,
    “the sort of constitutional challenges sufficient to preserve claims of
    Booker error in pre-Booker cases must fall at least arguably within the
    encincture of the constitutional concerns raised in Apprendi, Blakely, and
    UNITED STATES v. BENG-SALAZAR                     7491
    we are mindful of our charitable approach to preservation
    questions in other contexts. See, e.g., Valley Outdoor, Inc. v.
    City of Riverside, 
    446 F.3d 948
    , 954 n.7 (9th Cir. 2006) (not-
    ing our liberal interpretation of complaints, pretrial confer-
    ence orders, objections, and arguments on appeal); Holley v.
    Crank, 
    400 F.3d 667
    , 670 (9th Cir. 2005) (“[W]e read open-
    ing briefs liberally.”); United States v. Lui, 
    941 F.2d 844
    , 846
    (9th Cir. 1991) (holding that, despite defendant’s failure to
    object to admissibility of evidence during trial, the issue was
    preserved because he had raised it in his motion in limine).
    4.
    Here, Beng objected to any enhancement of his sentence
    based on facts that had not been found by a jury beyond a rea-
    sonable doubt. In support of his argument, he relied on
    Apprendi and Blakely, grounding his objection in the Sixth
    Amendment right to a jury trial. Beng’s objections in district
    court preserved his nonconstitutional Booker error claim.
    C.   Proper Remedy
    [6] It is beyond dispute that the district court, albeit
    unknowingly at the time, erred in sentencing Beng using the
    then-mandatory Sentencing Guidelines. Because we conclude
    that Beng preserved his claim of nonconstitutional Booker
    error, we must decide the appropriate remedy in his case.
    In Kortgaard and Hagege, cases of preserved constitutional
    and nonconstitutional Booker error, respectively, we did not
    Booker.” 
    Martins, 413 F.3d at 153
    ; see also United States v. Epstein, 
    426 F.3d 431
    , 442 (1st Cir. 2005) (“The similarity of the constitutional issues
    present in Booker, Blakely, and Apprendi justifies the wide latitude
    afforded defendants for preserving Booker errors, but this latitude is lim-
    ited. For example, an argument that the acceptance of responsibility guide-
    line was unconstitutional does not preserve a Booker error.” (citation and
    internal quotation marks omitted)), cert. denied, 
    126 S. Ct. 1596
    (2006).
    7492               UNITED STATES v. BENG-SALAZAR
    grant limited Ameline remands but rather vacated the sen-
    tences and remanded for resentencing. We crafted the remedy
    of an Ameline remand in response to an “unusual situation,”
    and out of concern that we not affirm unconstitutional sen-
    tences. 
    Ameline, 409 F.3d at 1079
    .5 Ameline was not intended
    to replace traditional harmless error analysis for cases of pre-
    served error. See 
    id. at 1078
    n.1 (“A different analysis will
    apply when a defendant preserves his Sixth Amendment claim
    . . . .” (emphasis added)).
    [7] Therefore, as does every other circuit that has encoun-
    tered a case of preserved, nonconstitutional error, we review
    Beng’s Booker error for harmlessness. Accord Rodriguez-
    
    Mesa, 443 F.3d at 404
    (Fifth Circuit); 
    Rodriguez, 433 F.3d at 416
    (Fourth Circuit); 
    Geames, 427 F.3d at 1339
    (Tenth Cir-
    cuit); United States v. Casas, 
    425 F.3d 23
    , 60 (1st Cir. 2005),
    cert. denied, 
    126 S. Ct. 1670
    (2006) (First Circuit); 
    Burke, 425 F.3d at 417
    (Seventh Circuit); 
    Lake, 419 F.3d at 113
    (Second Circuit); United States v. Haidley, 
    400 F.3d 642
    , 644
    (8th Cir. 2005) (Eighth Circuit). We will “reverse unless there
    is a fair assurance of harmlessness or, stated otherwise, unless
    it is more probable than not that the error did not materially
    affect the verdict.” United States v. Gonzales-Flores, 
    418 F.3d 1093
    , 1099 (9th Cir. 2005) (internal quotation marks omitted).
    5
    Although we adopted the limited remand approach in Ameline and
    extended its use in Moreno-Hernandez, in other cases of Booker error we
    have vacated and remanded for resentencing. See, e.g., United States v.
    Sanders, 
    421 F.3d 1044
    , 1052 (9th Cir. 2005) (“[W]hen the original sen-
    tencing judge is not available to conduct a limited remand pursuant to
    Ameline, the original sentence should be vacated and the case remanded
    for a full resentencing hearing.”); cf. United States v. Dare, 
    425 F.3d 634
    ,
    643 (9th Cir. 2005) (implicitly recognizing that vacating and remanding
    for resentencing would be appropriate in a case of preserved, nonconstitu-
    tional Booker error, were it not for a mandatory minimum statute that pre-
    cluded the possibility of a different sentence on remand). Even in the case
    of unpreserved, nonconstitutional Booker error, where Moreno-Hernandez
    counsels ordering a limited remand, we vacate and remand for resentenc-
    ing when it is clear that the error affected the outcome of the sentencing
    hearing. See United States v. Beaudion, 
    416 F.3d 965
    , 970 (9th Cir. 2005).
    UNITED STATES v. BENG-SALAZAR                7493
    The Government bears the burden of demonstrating harmless-
    ness, and should we find ourselves “in equipoise as to the
    harmlessness of the error, reversal is required.” 
    Id. [8] In
    light of the new advisory Guidelines system, it may
    be difficult for the government to show that it is more proba-
    ble than not that a district judge would have imposed the same
    sentence under the advisory Guidelines. See 
    Casas, 425 F.3d at 60-61
    ; 
    Lake, 419 F.3d at 113
    -14; 
    Mathenia, 409 F.3d at 1292
    . We find the Second Circuit’s reasoning particularly
    persuasive. As that court explained in Lake,
    Once the Supreme Court fundamentally altered
    federal sentencing procedures by ruling in Booker
    that the Guidelines were no longer required to be
    applied, it became difficult for the Government to
    sustain its burden of proving that a Booker error was
    harmless. Although some sentences imposed under
    the pre-Booker regime would not have been different
    had the sentences been imposed under the post-
    Booker regime, it will usually not be easy to divine
    with certainty that the sentencing judge would have
    imposed the same sentence. We have recognized that
    a “rare” case may arise where we can confidently
    say that a sentencing error was harmless, as occurs
    in circumstances where a statutory mandatory mini-
    mum prevents the sentencing judge from giving a
    lesser sentence after Booker than the one imposed
    
    pre-Booker. 419 F.3d at 113-14
    (footnote omitted); see also United States
    v. Fuller, 
    426 F.3d 556
    , 561 (2d Cir. 2005) (“[We cannot] say
    with any confidence what considerations counsel for both
    sides might have brought to the sentencing judge’s attention
    had they known that they could, as a matter of law, urge the
    judge to impose a non-Guidelines sentence.” (internal quota-
    tion marks omitted)).
    7494               UNITED STATES v. BENG-SALAZAR
    [9] The Government cannot direct us to any evidence in
    Beng’s case to satisfy its burden. Cf. 
    Rodriguez-Mesa, 443 F.3d at 405
    (holding that the government could not meet its
    burden to show harmless error when the district court was
    silent on how it might have sentenced the defendant under an
    advisory Guidelines system); 
    Rodriguez, 433 F.3d at 416
    (same); 
    Geames, 427 F.3d at 1339
    (“We . . . refrain from
    being placed in the zone of speculation and conjecture about
    what the district court would have done had it applied the
    Guidelines in an advisory capacity.” (internal quotation marks
    omitted)). We conclude that the Government has not estab-
    lished that it is more probable than not that the error did not
    materially affect Beng’s sentencing, and we vacate his sen-
    tence and remand for resentencing under the advisory Guide-
    lines.6
    III.   Conclusion
    We reject Beng’s arguments regarding the continued valid-
    ity of Almendarez-Torres and 8 U.S.C. § 1326(b).
    We follow the lead of every other circuit to consider the
    issue and hold that a defendant who raised an objection in dis-
    trict court based on the Sixth Amendment holdings of the
    Apprendi line of cases preserved his claim that he is entitled
    to resentencing under the advisory Guidelines regime.
    Because Beng’s objections pass muster under this test, he is
    6
    That Beng was sentenced to a mid-range Guideline sentence does not
    affect our analysis. See United States v. Glover, 
    431 F.3d 744
    , 750 (11th
    Cir. 2005) (per curiam) (“The government must do more than rely upon
    a mid-range sentence to satisfy its burden under the harmless error stan-
    dard.”); 
    Lake, 419 F.3d at 114
    (“[T]he fact that a judge selects a sentence
    within a guideline range that the judge thought he was required to apply
    does not necessarily mean that the same sentence would have been
    imposed had the judge understood the Guidelines as a whole to be adviso-
    ry.”). But see 
    Glover, 431 F.3d at 750
    (recognizing that the Eighth and
    Tenth Circuits have held that Booker error is harmless when a defendant
    has been sentenced to the midpoint of a Guideline range).
    UNITED STATES v. BENG-SALAZAR               7495
    entitled to full vacatur of his sentence and a remand to the dis-
    trict court for resentencing unless the Government can show
    that the error was harmless. In light of the district court’s
    understandable silence on how it would have sentenced Beng
    under an advisory Guidelines system, the Government cannot
    meet its burden.
    We VACATE Beng’s sentence and REMAND his case to
    the district court for resentencing.