UNITED STATES of America, Plaintiff-Appellee, v. Antonio ESCARCEGA-MEDINA, Defendant-Appellant, 178 F. App'x 442

PER CURIAM: Following a bench trial, Antonio Es-carcega-Medina was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) (2000). On appeal, Es-carcega challenges his conviction on the ground that he is a citizen of the United States pursuant to 8 U.S.C. § 1401. After carefully considering Escarcega’s claim in light of the briefs and pertinent portions of the record, we find that the evidence was sufficient to support Escarcega’s conviction. However, we vacate his sentence because it violated the Sixth Amendment. To establish a violation of

section 1326, the Government was required to prove that Escarcega was (1) an alien; (2) previously excluded, deported, or removed; and (3) found in the United States without the permission of the Attorney General or the Secretary of the Department of Homeland Security. 8 U.S.C. § 1326. Escarcega challenges only the first element. “[T]he test for evidential sufficiency is whether any substantial evidence supports the finding of guilty and whether the evidence is sufficient to justify the trial judge, as trier of the facts, in concluding beyond a reasonable doubt that the defendant was guilty.” United States v.

Davis, 993 F.2d 62, 66 (5th Cir.1993). The Government presented evidence that Escarcega was born in Mexico, that he had previously been issued an immigrant visa, and that he had been deported on multiple occasions. The Government thus provided the district court with sufficient evidence that Es-carcega was an alien in violation of

section 1326. The district court concluded that the evidence of citizenship was insufficient to raise a reasonable doubt. It implicitly found incredible Escarcega’s evidence that he had derivative citizenship by virtue of his mother’s citizenship. Such was the court’s prerogative as factfinder. Escarce-ga’s conviction is therefore AFFIRMED. Escarcega also brings a Sixth Amendment challenge to his sentence under the then-mandatory Guidelines. Escarcega’s Blakely objection before the district court properly preserved this issue for appeal.

The Government concedes that it cannot meet its burden of proving “beyond a reasonable doubt that the district court would not have sentenced [the defendant] differently had it acted under an advisory Guidelines regime.” United States v. Garza, 429 F.3d 165, 170 (5th Cir.2005), cert. denied, — U.S. —, 126 S.Ct. 1444, 164 L.Ed.2d 143 (2006). Accordingly, Escarcega’s sentence is VACATED and his case is REMANDED for resentencing consistent with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). CONVICTION AFFIRMED. SENTENCE VACATED AND REMANDED. Pursuant to 5th Cir.

R. 47.5, this 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. . The judgment of the district court incorrectly states that Escarcega was convicted following a jury, rather than a bench, trial. On remand, the district court may correct this clerical error. See United States v. Powell, 354 F.3d 362, 371 (5th Cir.2003).