United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 7, 2006
Charles R. Fulbruge III
Clerk
No. 05-20065
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL J. GAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-11-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Manuel J. Gay appeals his sentence following his guilty-plea
conviction for aiding and abetting to possess with the intent to
distribute cocaine and cocaine base. Gay argues that the
district court reversibly erred under United States v. Booker,
543 U.S. 220, 125 S. Ct. 738 (2005), by sentencing him pursuant
to a mandatory application of the Sentencing Guidelines. He
contends that the error was structural and insusceptible of
harmless error analysis. We have previously rejected this
*
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this opinion should not be published and is not precedent except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. 05-20065
-2-
specific argument. See United States v. Walters, 418 F.3d 461,
463 (5th Cir. 2005). Alternatively, Gay argues that the record
precludes a finding of harmlessness given his inability, under
the mandatory scheme, to raise various sentencing factors that
could have resulted in a lower sentence. The factors include the
sentencing disparities between crack and powder cocaine, the
disproportionate number of harsher crack sentences imposed upon
African-Americans, and the lower recidivism rate for older
defendants. Because the district court was unable to consider
these and other factors, Gay secondarily contends that his
sentence was unreasonable. As Gay’s sentence was imposed pre-
Booker, the reasonableness standard of review does not apply.
See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).
The district court committed “Fanfan” error by sentencing
Gay pursuant to a mandatory guidelines scheme. See Walters, 418
F.3d at 463-64. As the Government concedes, we review for
harmless error. See id. at 464.
The Government carries its burden of showing beyond a
reasonable doubt that the error did not affect Gay’s sentence.
At sentencing, the district court announced that Gay would be
subject to a harsher, 180-month sentence under an advisory
guideline regime. Under these circumstances, the imposition of
Gay’s 150-month sentence under the then mandatory guidelines
scheme was harmless. See United States v. Saldana, 427 F.3d 298,
No. 05-20065
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314 (5th Cir.), cert. denied, 126 S. Ct. 810 (2005), and cert.
denied, __ S. Ct. __, 2006 WL 37834 (U.S. Jan. 9, 2006).
Gay also contends that the district court’s assessment of
criminal history points based on the dates of, and terms of
imprisonment for, Gay’s prior convictions implicates Booker Sixth
Amendment concerns. Even if the district court’s assessment
violated the Sixth Amendment under Booker, the error was harmless
in light of the alternate harsher sentence announced by the
district court. See United States v. Pineiro, 410 F.3d 282, 284
& n.4 (5th Cir. 2005).
AFFIRMED.