United States v. Jesus Adrian Beng-Salazar

Jesus Adrian Beng-Salazar (“Beng”) appeals his conviction and sentence for illegal reentry into the United States in violation 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 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (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 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), were sufficient to preserve 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 Blakély, but not Booker . In Apprendi , the Court held that “[o]ther than the fact…