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Click here for the full text of this decision FACTS:Carlos Reyes-Celestino pleaded guilty to being found in the United States following deportation without having obtained consent to reapply for admission, in violation of 8 U.S.C. �1326. Reyes appeals his 63-month sentence pursuant to United States v. Booker, 543 U.S. 220 (2005). HOLDING:Vacated and remanded for resentencing. Reyes’s primary argument on appeal is that the district court erred by sentencing him under the mandatory guidelines scheme held unconstitutional in Booker. This type of argument is properly characterized as a Fanfan claim. The Government asserts that Reyes waived his Fanfan claim by consenting to be sentenced pursuant to the Sentencing Guidelines. The court disagrees. The plea agreement does not specify whether Reyes consented to a mandatory or advisory application of the Sentencing Guidelines. All ambiguities in a plea agreement must be construed against the government. United States v. Martinez, 263 F.3d 436 (5th Cir. 2001). Additionally, although Reyes agreed to be sentenced under the Sentencing Guidelines, he did not explicitly waive his right to challenge the constitutionality of the Guidelines on appeal. A defendant who agreed “to be sentenced pursuant to the applicable Sentencing Guidelines” is not precluded from raising on appeal an alleged Fanfan error. Reyes properly preserved his Fanfan claim below when he objected to his sentence under Blakely. The court reviews preserved Fanfan claims for harmless error. The government argues that the district court’s Fanfan error was harmless because the district court 1. “gave no indication that it wanted to impose a lesser sentence but was prevented from doing so,” and 2. “denied [Reyes's] request for a downward departure.” This improperly places the government’s burden on the defendant. The sentencing transcript is devoid of any evidence that the district court would have imposed the same sentence under an advisory guidelines scheme. Thus, the government has not met its burden of establishing beyond a reasonable doubt that the district court’s Fanfan error was harmless. OPINION:Per curiam; Reavley, Jolly and DeMoss, JJ.

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