United States v. Barrera

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.

--------------------
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this opinion should not be published and is not precedent except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.