United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 18, 2005
Charles R. Fulbruge III
Clerk
No. 05-30019
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERIBERTO AVILES, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:04-CR-20027-1
--------------------
Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Heriberto Aviles, Jr., a federal prisoner (# 69269-079),
appeals the sentence imposed following his guilty-plea conviction
of assaulting a fellow inmate with a dangerous weapon with intent
to do bodily harm, in violation of 18 U.S.C. § 113(a)(3).
Aviles argues that his sentence is illegal under Booker
because it was imposed pursuant to a mandatory application of the
sentencing guidelines. In the district court, Aviles objected
under Blakely v. Washington, 124 S. Ct. 2531 (2004), to
sentencing increases based on the career-offender guideline,
*
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this opinion should not be published and is not precedent except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. 05-30019
-2-
U.S.S.G. § 4B1.1, and that U.S.S.G. § 4B1.1 was itself
“unconstitutional.” This second allegation effectively raises
the type of error raised by the other respondent in Booker, Ducan
Fanfan, i.e., that imposition of a sentence pursuant to a
mandatory Guidelines regime violated his rights. See Booker,
125 S. Ct. at 750, 768-69; United States v. Walters, F.3d ,
No. 04-20669, 2005 WL 1693895 at * , (5th Cir. July 21, 2005),
2005 WL 1693895 at * . The Government concedes that it cannot
show harmless error as to Aviles’s “Fanfan”-type claim. Because
the Government admits that it cannot show that the district court
would not have sentenced Aviles differently under an advisory
Guidelines system, see United States v. Akpan, 407 F.3d 360, 377
(5th Cir. 2005), we REMAND for the district court to decide if
resentencing is warranted.
REMANDED.