United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-11259
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ESTRADA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:04-CR-18-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Luis Estrada appeals his guilty-plea sentence for aiding and
abetting the transportation of illegal aliens within the United
States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18
U.S.C. § 2.
Estrada renews his argument, preserved in the district
court, that in light of the Supreme Court’s decision in Blakely
v. Washington, 542 U.S. 296 (2004), his Sixth Amendment rights
were violated when the district court assessed a two-level
*
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this opinion should not be published and is not precedent except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. 04-11259
-2-
enhancement to his sentence pursuant to U.S.S.G. § 2L1.1(b)(5)
for creating a substantial risk of death or serious bodily injury
to his passengers based solely on judicially found facts.
Where, as here, an error under United States v. Booker, 125
S. Ct. 738 (2005), has been preserved in the district court, we
“will ordinarily vacate the sentence and remand, unless we can
say the error is harmless under Rule 52(a) of the Federal Rules
of Criminal Procedure.” United States v. Pineiro, 410 F.3d 282,
284 (5th Cir. 2005) (internal quotation marks and citation
omitted). “The government bears the burden of showing that the
error was harmless beyond a reasonable doubt.” Id. To meet this
burden, the Government must show that the Booker error did not
affect the sentence that the defendant received, i.e., it must
show “that the district court would have imposed the same
sentence absent the error.” Id.
The district court sentenced Estrada to the top of his
guidelines range, but this factor is not conclusive to show that
any error was harmless. Cf. United States v. Rodriguez-Gutierrez,
F.3d , No. 04-30451, 2005 WL 2447908 at ** 2-3 (5th Cir.
Oct. 5, 2005) (holding, under a plain error standard of review,
that a sentence at the maximum end of the guidelines range is
strong but not conclusive evidence that the district court would
not have imposed a lesser sentence under an advisory guidelines
scheme). Although the district court also found such a sentence
to be “adequate” to meet the sentencing objectives of punishment
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and deterrence, the record contains no other indication by the
district court that it would have imposed the same sentence
absent Booker error. The Government thus cannot meet its burden.
Accordingly, Estrada’s sentence is VACATED and the case is
REMANDED for resentencing.
VACATED AND REMANDED.