United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 13, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-50955
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEREMY PHILLIP VIALPANDO,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, El Paso
USDC No. 3:04-CR-484-ALL-PRM
_________________________________________________________________
Before JOLLY, BEAM1 and BARKSDALE, Circuit Judges.
PER CURIAM:2
After a review of the record, study of the briefs, and
consideration of oral argument, we find that the district court
abused its discretion in failing to consider the Blakely objection
raised by Vialpando at sentencing. By raising the Blakely
objection at the sentencing hearing Vialpando properly preserved
his Booker appeal. See United States v. Saldana, __ F.3d __, 2005
WL 2404810 (5th Cir. Sept. 30, 2005) (holding that the defendant
1
Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
2
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this opinion should not be published and is not precedent except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.
“preserved his Booker challenge . . . by citing Blakely at his
sentencing hearing”). As the government has correctly conceded
that it cannot meet its burden of demonstrating harmless error, we
remand the case for resentencing.
Although remand is required based on Vialpando’s Booker claim,
we note that his claims as to the validity of the eight prior
Colorado convictions used by the district court in calculating
Vialpando’s criminal history score will also need to be addressed.
While we agree with the district court that Vialpando’s claim as to
the lack of identity evidence linking him to those convictions is
without merit, the district court on remand will need to determine
if the right to counsel was satisfied as constitutionally required
in each of the eight prior convictions at issue. As such the
sentence of the district court is VACATED and the case is REMANDED
for resentencing not inconsistent with this opinion.
VACATED and REMANDED.
2