United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 22, 2005
Charles R. Fulbruge III
Clerk
No. 03-21121
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO AGUIRRE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-36-2
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Eduardo Aguirre appeals from his sentence following his
guilty-plea conviction of aiding and abetting to possess with
intent to distribute 100 kilograms or more of marijuana. Aguirre
argues that, under United States v. Booker, 125 S. Ct. 738
(2005), the district court clearly erred in increasing his
sentence by finding by a preponderance of the evidence that he
was responsible for an amount of marijuana beyond the 461
kilograms for which Aguirre admitted responsibility.
*
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this opinion should not be published and is not precedent except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. 03-21121
-2-
It is not necessary to consider Aguirre’s Booker argument
because, as the Government argues, Aguirre’s sentence should be
vacated and the matter remanded for resentencing based on our
holdings in four of Aguirre’s co-indictees’ appeals that the
district court clearly erred in basing its findings of drug
quantity on the statements of an informant who the Government had
identified as unreliable. See United States v. Ayala, 107 Fed.
Appx. 410 (5th Cir. 2004)(unpublished); United States v. Trevino,
125 Fed. Appx. 549 (5th Cir. 2005)(unpublished). There is no
reason to reach a different result in Aguirre’s case, and
Aguirre’s sentence is VACATED and the matter REMANDED remand for
further proceedings consistent with this opinion. Because we
have vacated Aguirre’s sentence, we do not consider Aguirre’s
arguments pertaining to the denial of a reduction in his offense
level for acceptance of responsibility or that his sentence
should be reversed because the Government breached its plea
agreement. We GRANT the appellee’s unopposed motion to seal the
appellee’s brief.
SENTENCE VACATED AND THE MATTER REMANDED; MOTION TO SEAL
APPELLEE’S BRIEF GRANTED.