United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 14, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 05-40047
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACINTO CORTES-GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Criminal No. 7:04-CR-138
Before JONES, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
Jacinto Cortes-Garcia pleaded guilty to being unlawfully
present in the United States after having been deported, a
violation of 8 U.S.C. § 1326. He appeals his 57-month sentence
pursuant to United States v. Booker, 125 S. Ct. 738 (2005).1
Because Cortes-Garcia preserved his claim of error and the
Government cannot demonstrate the error is harmless, we VACATE
*
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opinion should not be published and is not precedent except under the limited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.
1
To preserve the issue for possible Supreme Court review, Cortes-
Garcia also challenges the constitutionality of § 1326, but he correctly concedes
that this argument is foreclosed. See Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998); United States v. Alfraro, 408 F.3d 204, 210-11 (5th Cir.
2005), cert. denied, (Oct. 3, 2005)(No. 05-5604).
Cortes-Carcia’s sentence and REMAND to the district court for re-sentencing.
BACKGROUND
On April 5, 2004, Cortes-Garcia pleaded guilty to a
violation of 8 U.S.C. § 1326. A pre-sentence report (“PSR”)
calculated Cortes-Garcia’s total offense level at 22, which
included a sixteen-level enhancement for his prior conviction of a
crime of violence and a two-level reduction for acceptance of
responsibility. Cortes-Garcia objected to the PSR on the basis of
Blakely v. Washington, 124 S. Ct. 2531 (2004). The district court
overruled this objection. At sentencing, the court granted the
Government’s motion for an additional one-level reduction for
acceptance of responsibility, bringing the total offense level to
21, and sentenced Cortes-Garcia to fifty-seven months imprisonment.
DISCUSSION
Because the district court sentenced Cortes-Garcia under
a mandatory Guidelines regime, it committed Fanfan error.
See United States v. Valenzuela-Quevado, 407 F.3d 728, 733
(5th Cir. 2005); see also United States v. Walters, 418 F.3d 461,
463 (5th Cir. 2005)(discussing the difference between Sixth
Amendment Booker error and Fanfan error). The Government concedes
that Cortes-Garcia’s objection on the basis of Blakely v.
Washington, 124 S. Ct. 2531 (2004), was sufficient to preserve his
Fanfan claim.
2
This court reviews preserved Fanfan claims for harmless
error. See United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.
2005) (“[I]f either the Sixth Amendment issue presented in Booker
or the issue presented in Fanfan is preserved in the district court
by an objection, we will ordinarily vacate and remand, unless we
can say the error is harmless under Rule 52(a) of the Federal Rules
of Criminal Procedure.”). Thus, “the only question is whether the
government has met its burden to show harmless error beyond a
reasonable doubt in the imposition of [the defendant’s] sentence.”
Walters, 418 F.3d at 464.
Under harmless error, an error that does not affect a
defendant’s “substantial rights” is disregarded. FED. R. CRIM. P.
52(a). Thus, the Government must prove beyond a reasonable doubt
that the outcome of the district court proceedings was not affected
by the imposition of the mandatory Guidelines. In the instant
case, the Government argues that no prejudice resulted to the
defendant because he received the benefit of the Guidelines — a
three-level reduction for acceptance of responsibility. We are not
persuaded by the Government’s argument, particularly in light of
the district court’s lack of clear commentary regarding the
sentence and its decision to sentence at the bottom of the
applicable Guideline range.
CONCLUSION
3
Accordingly, we VACATE Cortes-Garcia’s sentence and
REMAND for resentencing.
4