United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 21, 2005
Charles R. Fulbruge III
No. 04-10741 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABELARDO GONZALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
No. 4:04-CR-11-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Abelardo Gonzales appeals the 120-month sentence imposed after
his guilty-plea conviction of being a felon in possession of a
firearm. The district court upwardly departed to 120 months’
imprisonment from Gonzales’s guideline range of 70 to 87 months
based on its finding that the top of the guideline range under-
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
No. 04-10741
-2-
represented the seriousness of Gonzales’s criminal history or the
likelihood he would commit further crimes. Gonzales argues that
the district court reversibly erred (1) by upwardly departing after
considering his (a) arrests that did not result in convictions,
(b) remote convictions, and (c) convictions that were used to de-
termine his criminal history category; (2) by failing to comply
with U.S.S.G. § 4A1.3(a)(4) when it determined the extent of the
departure; and (3) in deciding to depart based on facts not ad-
mitted by Gonzales or found by a jury.
After United States v. Booker, 543 U.S. 220 (2005), we contin-
ue to review the interpretation and application of guidelines de
novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005)
(per curiam). The district court’s decision to depart upward and
the extent of the departure are reviewed for abuse of discretion.
United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005), cert.
denied, 2005 U.S. LEXIS 9136 (U.S. Dec. 5, 2005).
“If reliable information indicates that the defendant’s crim-
inal history category substantially under-represents the serious-
ness of a defendant’s criminal history or the likelihood that the
defendant may commit other crimes, an upward departure may be war-
ranted.” U.S.S.G. § 4A1.3(a)(1). “However, a prior arrest record
itself shall not be considered under [§ 4A1.3].” § 4A1.3; see
United States v. Cantu-Dominguez, 898 F.2d 968, 971 (5th Cir.
1990). A sentencing court incorrectly applies the guidelines where
it bases a departure on an impermissible factor such as the defen-
No. 04-10741
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dant’s prior arrest record. Williams v. United States, 503 U.S.
193, 199-200 (1992). The government has the burden of showing on
appeal “that the district court would have imposed the same sen-
tence absent the erroneous factor.” Id. at 203.
The government has not argued and has thus failed to show
that, absent consideration of Gonzales’s arrests that did not re-
sult in convictions, the court would have imposed the same sen-
tence. Accordingly, we VACATE the sentence and REMAND for resen-
tencing. Consequently, we do not address Gonzales’s remaining
claims of Booker error or error under the guidelines. See United
States v. Southerland, 405 F.3d 263, 270 (5th Cir. 2005).
VACATED AND REMANDED.