United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 3, 2006
Charles R. Fulbruge III
Clerk
No. 05-40019
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ROMERO-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas, Laredo
USDC No. 5:04-CR-1430-ALL
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Mario Romero-Flores appeals the sentence
imposed following his jury-trial conviction on two counts of
smuggling aliens for financial gain. He contends that the district
court committed error under United States v. Booker, 542 U.S. 220
(2005), when it sentenced him based on judicial fact-findings made
in violation of his rights under the Sixth Amendment. He also
*
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this opinion should not be published and is not precedent except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.
contends that the district court misapplied the Sentencing
Guidelines in calculating his sentence and that the court erred by
imposing his sentence under the misapprehension that the Sentencing
Guidelines were mandatory.
Romero-Flores is correct that the district court committed
Sixth Amendment error under Booker when it enhanced his sentence
based on factual determinations that he did not admit and that the
jury did not find beyond a reasonable doubt. Additionally, as the
government acknowledges, Romero-Flores preserved this issue by
objecting to the sentence enhancement on Sixth Amendment grounds.
See United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).
When, as here, a Booker error has been preserved in the district
court, we “will ordinarily vacate the sentence and remand, unless
[this court] can say the error is harmless under Rule 52(a) of the
Federal Rules of Criminal Procedure.” United States v. Pineiro, 410
F.3d 282, 284 (5th Cir. 2005) (internal quotation marks and
citation omitted). The government concedes that it cannot show
harmlessness in this case. The government cannot, therefore, meet
its “arduous” burden of demonstrating “beyond a reasonable doubt
that the Sixth Amendment Booker error did not affect the sentence
that [Romero-Flores] received.” Pineiro, 410 F.3d at 285, 287. As
we must remand this case for resentencing, we need not address
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Romero-Flores’s other arguments concerning the sentence
enhancement.
Romero-Flores also challenges the condition of his supervised
release requiring that he cooperate with the probation officer in
the collection of a DNA sample. This is not ripe for review on
direct appeal. United States v. Riascos-Cuenu, 428 F.3d 1100,
1101-02 (5th Cir. 2005), petition for cert. filed, (U.S. Jan. 9,
2006)(No. 8662). Accordingly, we lack appellate jurisdiction to
consider this isue.
SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
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