United States v. 2006-07-05 | 04-50518 | USA VBENG-SALAZAR | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-50518
Plaintiff-Appellee, D.C. No.
v.  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

-- 1 of 16 --

COUNSEL
Ellis M. Johnston, III, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
7481 UNITED STATES v. BENG-SALAZAR

-- 2 of 16 --

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
7482 UNITED STATES v. BENG-SALAZAR

-- 3 of 16 --

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
7483 UNITED STATES v. BENG-SALAZAR

-- 4 of 16 --

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.
1Subsections (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.
7484 UNITED STATES v. BENG-SALAZAR

-- 5 of 16 --

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
7485 UNITED STATES v. BENG-SALAZAR

-- 6 of 16 --

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.
7486 UNITED STATES v. BENG-SALAZAR

-- 7 of 16 --

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.
7487 UNITED STATES v. BENG-SALAZAR

-- 8 of 16 --

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-
7488 UNITED STATES v. BENG-SALAZAR

-- 9 of 16 --

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
2Not 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).
7489 UNITED STATES v. BENG-SALAZAR

-- 10 of 16 --

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,
3A 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).
4We 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
7490 UNITED STATES v. BENG-SALAZAR

-- 11 of 16 --

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).
7491 UNITED STATES v. BENG-SALAZAR

-- 12 of 16 --

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).
5Although 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).
7492 UNITED STATES v. BENG-SALAZAR

-- 13 of 16 --

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)).
7493 UNITED STATES v. BENG-SALAZAR

-- 14 of 16 --

[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
6That 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).
7494 UNITED STATES v. BENG-SALAZAR

-- 15 of 16 --

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.
7495 UNITED STATES v. BENG-SALAZAR

-- 16 of 16 --