United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-40969
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSICA YVONNE BARRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1907-1
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Jessica Yvonne Barrera appeals her guilty-plea conviction of
transporting an undocumented alien by means of a motor vehicle
for private financial gain, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(ii) and (a)(1)(B)(i). Barrera argues, inter
alia, that the district court committed Sixth Amendment error
under United States v. Booker, 125 S. Ct. 738 (2005), when it
enhanced her sentence pursuant to U.S.S.G. § 2L1.1(b)(5) after
*
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this opinion should not be published and is not precedent except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. 04-40969
-2-
finding that the offense created a substantial risk of death or
serious bodily injury based on facts that she did not admit.
While information contained in the Presentence Report
arguably supports the enhancement, Barrera did not admit facts
that support the U.S.S.G. § 2L1.1(b)(5) enhancement. See United
States v. Cuyler, 298 F.3d 387, 388 (5th Cir. 2002). The
district court therefore committed Sixth Amendment error under
Booker. See Booker, 123 S. Ct. at 756. Where, as here, a Booker
error has been preserved in the district court, this court will
ordinarily vacate the sentence and remand, unless the error is
harmless under Rule 52(a) of the Federal Rules of Criminal
Procedure. See United States v. Pineiro, 410 F.3d 282, 284 (5th
Cir. 2005). The Government has failed to demonstrate beyond a
reasonable doubt that the Sixth Amendment Booker error did not
affect the sentence that Barrera received. See id. at 284-85,
87.
Accordingly, Barrera’s sentence is VACATED, and the case is
REMANDED FOR RESENTENCING.