United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 3, 2006
Charles R. Fulbruge III
Clerk
No. 04-41080
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL ESTRADA-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-634-1
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Manuel Estrada-Garcia (Estrada) appeals his conviction and
the sentence he received after he pleaded guilty to one count of
illegal reentry following deportation. Estrada argues that his
sentence is illegal under United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005), because it was imposed pursuant to a
mandatory application of the federal Sentencing Guidelines.
The erroneous application of the Guidelines as mandatory is
technically a “Fanfan error.” United States v. Martinez-Lugo,
*
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this opinion should not be published and is not precedent except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. 04-41080
-2-
411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464
(2005); see Booker, 125 S. Ct. at 750, 768-69. The Government
concedes that Estrada preserved his Fanfan claim for appeal. The
Government fails to meet its burden of proving that the district
court’s sentence under Guidelines it deemed mandatory was
harmless beyond a reasonable doubt because the Government fails
to cite to any record evidence showing that the district court
would have imposed the same sentence under an advisory guidelines
scheme. See United States v. Walters, 418 F.3d 461, 464 (5th
Cir. 2005); United States v. Garza, 429 F.3d 165, 171 (5th Cir.
2005) (Booker error). We therefore vacate the sentence and
remand the case for resentencing in accordance with Booker.
Estrada also challenges the term of supervised release that
was imposed on the basis that the enhancement provisions set
forth in § 1326(b) are unconstitutional. Given that Estrada’s
entire sentence is vacated, this court need not reach this
argument. See United States v. Akpan, 407 F.3d 360, 377 n.62
(5th Cir. 2005).
SENTENCE VACATED; CASE REMANDED.