United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-41543
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER ZAMARRIPA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-995-ALL
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Javier Zamarripa appeals his sentence of 18 months in prison
following his guilty-plea conviction for transporting an illegal
alien for profit, in violation of 8 U.S.C. § 1324. The district
court arrived at Zamarripa’s sentence by applying the enhancement
at U.S.S.G. § 2L1.1(b)(5), after it found that Zamarripa
recklessly endangered illegal aliens by transporting them lying
down, covered with wood, in the bed of his truck.
*
Pursuant to 5TH CIR. R. 47.5, the 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this opinion should not be published and is not precedent except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.
No. 04-41543
-2-
Zamarripa challenged the enhancement, arguing that such
judicial fact-finding violated Blakely v. Washington, 124 S. Ct.
2531 (2004). Blakely reaffirmed the rule 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.’”
Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530
U.S. 466 (2000)).
After Zamarripa was sentenced, the Supreme Court issued its
decision in United States v. Booker, 125 S. Ct. 738 (2005),
applying its holding in Blakely to the Federal Sentencing
Guidelines. Because the district court enhanced Zamarripa’s
sentence based on its factual determination, other than the fact
of a prior conviction, the district court committed error under
Booker.
Zamarripa preserved his argument by raising it in the
district court. Ordinarily, when a defendant presents a
preserved Booker issue, we vacate the sentence and remand, unless
the Government can demonstrate that the error was harmless beyond
a reasonable doubt. United States v. Pineiro, ___ F.3d ___, 2005
WL 1189713, * 2 (5th Cir. May 20, 2005). Here, the Government
has waived argument with respect to error. Accordingly, the
Government cannot demonstrate harmless error, and Zamarripa’s
sentence must be vacated and remanded for resentencing.
VACATED AND REMANDED.