United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-51365
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO ESCOBAR-GAETA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-785-ALL-PRM
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges
PER CURIAM:*
Having pleaded guilty, Alfredo Escobar-Gaeta appeals his
concurrent sentences for conspiracy to import more than 100
kilograms of marijuana, importation of more than 100 kilograms of
marijuana, conspiracy to possess with intent to distribute more
than 100 kilograms of marijuana, and possession with intent to
distribute more than 100 kilograms of marijuana. Escobar-Gaeta
argues that the sentences violate United States v. Booker, 125 S.
Ct. 738 (2005). We conclude that Escobar-Gaeta’s objections to
*
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this opinion should not be published and is not precedent except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. 04-51365
-2-
his sentence in the district court preserved his arguments for
appellate review. United States v. Olis, 429 F.3d 540, 544 (5th
Cir. 2005); United States v. Akpan, 407 F.3d 360, 375-76 (5th
Cir. 2005). When reviewing a Booker claim that has been
preserved, we will ordinarily vacate and remand unless the
Government can show beyond a reasonable doubt that the error was
harmless. See United States v. Pineiro, 410 F.3d 282, 285 (5th
Cir. 2005).
The imposition of a sentence based on facts exceeding those
stipulated by Escobar-Gaeta when he pleaded guilty was erroneous.
Id. The Government’s brief does not address the issue of
harmless error, and our review of the record reveals nothing to
suggest that the Booker error did not influence the district
court’s selection of a sentence. See id. Accordingly, Escobar-
Gaeta’s sentences are VACATED and this matter is REMANDED for
resentencing.