United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 12, 2005
Charles R. Fulbruge III
Clerk
No. 05-40015
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSIE ARREDONDO-AGUILAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1529-1
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Josie Arredondo-Aguilar pleaded guilty in September 1994 to
transporting undocumented aliens within the country for profit and
was sentenced in December 2005 to 24 months of imprisonment, three
years of supervised release, a $1,500 fine, and a $100 special
assessment. In arriving at her sentence, the district court found
that Arredondo-Aguilar intentionally or recklessly endangered the
*
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opinion should not be published and is not precedent except under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.
aliens she transported and enhanced her sentence under U.S.S.G. §
2L1.1(b)(5) based on that finding, which produced a guideline range
of 24 to 30 months.
Arredondo-Aguilar appeals her sentence only. She argues that
the enhancement was unconstitutional under United States v. Booker,
125 S.Ct. 738 (5th Cir. 2005) and the district court reversibly
erred in sentencing her under a scheme where guideline sentences
were mandatory; that the district court clearly erred in
determining that she endangered the aliens; and, that her criminal
history score was improperly calculated. We recently held that
“[w]e do not believe the act of transporting four aliens lying in
the cargo area of a minivan, with no aggravating factors,
constitutes an inherently dangerous practice such as to create a
substantial risk of death or serious bodily injury to those
aliens.” United States v. Solis-Garcia, ___ F.3d ___, No. 04-
41439, 2005 WL 1870776, *4 (5th Cir. Aug. 9, 2005).
Arredondo-Aguilar objected to the § 2L1.1(b)(5) enhancement on
the basis of Blakely v. Washington, 542 U.S. 296 (2004), stating
that under Blakely “a sentencing scheme that permits a judge to
make factual findings essential to an increase in punishment
violates a defendant’s Sixth Amendment right to a jury trial and
his Fifth Amendment right to due process of law.”1 We note that
1
At sentencing, the district court overruled this objection
based on our July 12, 2004 opinion in United States v. Pineiro, 377
F.3d 464 (5th Cir. 2004), holding Blakely inapplicable to
2
the indictment alleged no facts tending to support the §
2L1.1(b)(5) enhancement, and that although most of the primary
facts relied on by the district court in imposing the enhancement
were admitted by Arredondo-Aguilar at the Rule 11 hearing, not all
the primary facts so relied on were admitted by her, and she never
admitted at the Rule 11 hearing or otherwise, and indeed at the
sentencing hearing she expressly denied, that the aliens were
exposed to a substantial risk of death or serious bodily injury
and that she acted intentionally or recklessly in that respect.
Moreover, the district court never advised Arredondo-Aguilar at the
Rule 11 hearing that her plea of guilty would waive any right she
might have to a jury determination of sentencing enhancement facts
not alleged in the indictment (other than prior convictions or
facts admitted by her) or to have such facts found or established
beyond a reasonable doubt; nor did the court make its enhancement
factual findings beyond a reasonable doubt.
The district court committed Booker error in its sentencing of
Arredondo-Aguilar. She preserved this contention by her objections
below. United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir.
2005). Therefore, the Government bears the burden of establishing,
beyond a reasonable doubt, that the error did not affect Arredondo-
Aguilar’s sentence. See id. The Government has not met its
burden.
sentencing guideline cases.
3
Arredondo-Aguilar’s conviction is AFFIRMED. Her sentence is
VACATED, and the matter is REMANDED for resentencing consistent
with Justice Breyer’s opinion in Booker. Because we vacate and
remand Arredondo-Aguilar’s entire sentence, we need not and do not
reach her other claims of error. We note, however, that in
arriving at the proper guideline range to be determined under the
advisory guideline system called for in Justice Breyer’s Booker
opinion, the district court on resentencing should reconsider what
suffices to establish enhancement under § 2L1.1(b)(5) in light of
our opinion in Solis-Garcia.2
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.
2
The district court should also consider that, as Arredondo-
Aguilar argues (for the first time on appeal) and as the Government
concedes, Arredondo-Aguilar should not have been assessed any
criminal history points in respect to her August 26, 1996
conviction, and that without that conviction her criminal history
category would have been II rather than III as calculated by the
PSR and her guideline imprisonment range would likewise have been
lower.
4