United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
February 13, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-51196
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS RAUL RAMIREZ-PALOMO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 04-CR-547
Before Garwood, Davis, and Benavides Circuit Judges.
PER CURIAM:*
Luis Raul Ramirez-Palomo (“Ramirez-Palomo”) challenges his
sentence. We vacate and remand for resentencing in light of United
States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), and its
progeny.
* Pursuant to 5th Cir. R. 47.5, this 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this opinion should not be published and is not precedent except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.
I. BACKGROUND
Ramirez-Palomo pleaded guilty to a two-count indictment
charging him with importing and possessing with intent to distribute
five or more kilograms of cocaine. In calculating Ramirez-Palomo’s
sentencing range, the presentence report (“PSR”) recommended a two-
point sentencing enhancement for using minors in the commission of
the offense. See U.S.S.G. § 3B1.4. Ramirez-Palomo objected to the
PSR, citing Blakely v. Washington, 542 U.S. 296 (2004). In
response, the probation officer provided details of her presentence
interview with Ramirez-Palomo in which he stated that the man who
recruited him to drive the drugs across the border told him it was
easier to evade detection by bringing his wife and children with
him. Ramirez-Palomo also told the probation officer that he did not
see anything wrong with bringing his family along. Ramirez-Palomo
carried his Blakely objection forward at sentencing.
At Ramirez-Palomo’s sentencing hearing, which was held prior
to the Supreme Court’s ruling in United States v. Booker, the
district court denied the Blakely objection, citing that Ramirez-
Palomo admitted to the probation officer the use of minors for the
purpose of avoiding detection. The court consequently applied the
two-point enhancement. Ultimately, the court set Ramirez-Palomo’s
sentencing range at 108 to 135 months imprisonment per count and
sentenced him to concurrent terms of 108 months imprisonment for
each count.
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II. DISCUSSION
Ramirez-Palomo argues that the district court erred in
enhancing his sentence based on facts neither admitted to nor found
by a jury beyond a reasonable doubt. The Government counters that
Ramirez-Palomo’s statement to the probation officer satisfies the
requirement that a fact be “admitted by the defendant.” Booker, 543
U.S. at __, 125 S. Ct. at 756. The issue, as framed by the parties,
is whether the statement to the probation officer constitutes an
admission or unconstitutional judicial fact-finding error under
Booker. However, we do not need to reach this issue.
Whether or not Ramirez-Palomo’s statement to the probation
officer was an admission, our analysis is unchanged. We have
identified two types of sentencing error in Booker’s wake. See
United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). First,
“Booker error is found where the district court applied the
mandatory Guidelines and enhanced a defendant’s sentence on the
basis of facts neither admitted by him nor found by a jury beyond
a reasonable doubt, in violation of the Sixth Amendment.” Id. at
463. Second, there is Fanfan error where the district court applied
the mandatory Guidelines to enhance a defendant’s sentence but did
not engage in judicial fact-finding. Id. Here, if, as
Ramirez-Palomo maintains, the statement was not an admission, then
Booker error exists. Alternatively, following the Government’s
argument, if the statement was an admission, then Fanfan error
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exists. Under either scenario, our standard of review is the same.
We have recognized that mandatory application of the Sentencing
Guidelines is, ipso facto, erroneous after Booker. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005).
The Government concedes that Ramirez-Palomo preserved the error by
objecting under Blakely. See, e.g., United States v. Garza, 429
F.3d 165, 170 (5th Cir. 2005). Accordingly, our standard of review
is for harmless error. See FED. R. CRIM. P. 52(a). Under this
standard, we must vacate and remand unless the Government can prove
beyond a reasonable doubt that the district court would not have
sentenced Ramirez-Palomo differently had it acted under an advisory
Guidelines regime. See Walters, 418 F.3d at 464; United States v.
Akpan, 407 F.3d 360, 377 (5th Cir. 2005).
The Government has failed to meet its “arduous burden.” United
States v. Pineiro, 410 F.3d 282, 284-87 (5th Cir. 2005). The
Government claims that the error was harmless because the sentence
was based on upon admitted facts. It also argues that Ramirez-
Palomo failed to introduce evidence rebutting the Government’s
evidence that he used minors in the offense. Neither of these
arguments show that Ramirez-Palomo’s sentence would have been the
same under advisory Guidelines. The Government’s position that
Ramirez-Palomo could not possibly obtain an improvement upon
resentencing without contesting the factual basis of the sentencing
enhancement ignores the district court’s post-Booker authority to
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impose a non-Guideline sentence.
Additionally, the court sentenced Ramirez-Palomo at the
absolute minimum of the Guideline range. This supports
Ramirez-Palomo’s argument that the court would have imposed a lesser
sentence had the Guidelines been understood as advisory. See United
States v. Rodriguez-Gutierrez, 428 F.3d 201, 205 (5th Cir. 2005).
In short, the Government has not carried its burden of proving
harmlessness.
III. CONCLUSION
For the foregoing reasons, we VACATE Ramirez-Palomo’s sentence
and REMAND for resentencing in accordance with Booker and its
progeny.
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