UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4088
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAUL BARRERA-RENTERIA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-310)
Submitted: June 21, 2006 Decided: July 18, 2006
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
David B. Freedman, WHITE AND CRUMPLER, Winston-Salem, North
Carolina, for Appellant. Angela Hewlett Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Saul Barrera-Renteria appeals his eighty-four month
prison sentence imposed following his guilty plea to illegal
reentry after having been convicted of a felony and being deported,
in violation of 8 U.S.C. §§ 1326 (a), (b)(2) (2000). He does not
appeal his conviction. We vacate his sentence and remand for
resentencing in light of United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005).
In Booker, the Supreme Court concluded the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the judge
by a preponderance of the evidence violated the Sixth Amendment.
Booker, 125 S. Ct. at 746, 750. The Court remedied the
constitutional violation by severing two statutory provisions, 18
U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (appellate
standards of review for guideline issues), thereby making the
guidelines advisory. Booker, 125 S. Ct. at 756-57.
Barrera-Renteria contends that the two criminal history
points assessed for committing the instant offense while on parole
were based upon facts found by the judge, and not admitted to, in
violation of his Sixth Amendment rights. Because Barrera-Renteria
preserved this issue by objecting to the presentence report (“PSR”)
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based upon Blakely v. Washington, 542 U.S. 296 (2004), we review
for harmless error. When a defendant preserves a Sixth Amendment
error, this court “must reverse unless [it] find[s] this
constitutional error harmless beyond a reasonable doubt, with the
Government bearing the burden of proving harmlessness.” See United
States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003). In this
case, any presumed error is harmless because even removing the two
criminal history points, Barrera-Renteria still has ten criminal
history points, and would remain in Criminal History Category V,
which applies to defendants with ten to twelve criminal history
points. United States v. White, 405 F.3d 208, 223 (4th Cir. 2005).
No reversible Sixth Amendment error occurred.
Barrera-Renteria also asserts that the district court’s
mandatory application of the Guidelines constitutes reversible
error. Because Barrera-Renteria raised a timely Blakely objection
at sentencing, he has preserved his claim of statutory Booker
error. United States v. Rodriguez, 433 F.3d 411, 415 (4th Cir.
2006). Thus, we review Barrera-Renteria’s claim for harmless
error, which places “the burden . . . on the Government to show
that such an error did not affect the defendant’s substantial
rights.” Id. at 416. The Government concedes that it cannot show
the error was harmless and cannot satisfy its burden of showing the
error did not affect Barrera-Renteria’s substantial rights. There
is no indication from the record how the district court would
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sentence Barrera-Renteria under the current advisory guidelines
system. Therefore, Barrera-Renteria must be resentenced.*
Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all the factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the Guidelines
range, the court should explain its reasons for the departure as
required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
Accordingly, we vacate Barrera-Renteria’s sentence and
remand for resentencing in light of Booker. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
VACATED AND REMANDED
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Barrera-Renteria’s sentencing.
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