United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 17, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-40092
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FERMIN ZAMORA-VALLEJO,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-848-ALL
_________________________________________________________________
Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.
BY THE COURT:
In an opinion issued in this case on October 23, 2006, we
indicated that the government had not cited or distinguished
several controlling precedents. The court was in error in the
sense that, because of the decision in United States v. Booker1 and
Hurricane Katrina, resolution of this case was delayed and the
court failed to notice that the original briefs were filed on
August 19, 2005, before several of the controlling cases were
decided. We regret the error and issue a revised opinion omitting
our critical comments. The previous opinion is withdrawn and the
revised opinion is substituted therefor.
1
543 U.S. 220 (2005).
United States Court of Appeals
Fifth Circuit
F I L E D
REVISED NOVEMBER 17, 2006
October 23, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 05-40092
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FERMIN ZAMORA-VALLEJO,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:
This “Fanfan”2 sentencing appeal requires us to determine
whether the district court’s decision to run the defendant’s
sentences consecutively for crimes that were unrelated yet
triggered by the same conduct demonstrates beyond a reasonable
doubt that the sentence would have been the same under an advisory
2
See United States v. Walters, 418 F.3d 461, 463 (5th Cir.
2005) (explaining that “Fanfan” error, one of two types of error
addressed in United States v. Booker, 543 U.S. 220 (2005), “is
found where the district court applied the mandatory Guidelines to
enhance a defendant’s sentence absent any Sixth Amendment Booker
error”).
(instead of mandatory) Sentencing Guidelines scheme. We hold that
it does not and thus we vacate and remand for resentencing.
I
In 2003, Fermin Zamora-Vallejo (“Zamora”) was sentenced to
eight months in prison and two years of supervised release for
unlawfully transporting aliens. After serving his prison sentence,
Zamora was deported. In October 2004, while still on supervised
release, he pleaded guilty to being in the United States illegally
after having been deported, in violation of 8 U.S.C. § 1326 (a) and
(b). The terms of Zamora’s plea with the government included
agreements to be sentenced under the applicable Sentencing
Guidelines and to waive any right to have sentencing facts charged
in the indictment, found by a jury, or found beyond a reasonable
doubt.3
Under the 2004 edition of the Sentencing Guidelines Manual,
the U.S. Probation Office drafted a Pre-Sentence Report (PSR) that
3
In relevant part, the agreement stated that:
The defendant, by entering this plea, also
waives any rights to have facts that the law
makes essential to the punishment either (1)
charged in the indictment or (2) proven to a
jury or (3) proved beyond a reasonable doubt.
The defendant explicitly consents to be
sentenced pursuant to the applicable
Sentencing Guidelines. The defendant
explicitly acknowledges that his plea in the
charged offense(s) authorizes the court to
impose any sentence authorized by the
Sentencing Guidelines, up to and including the
statutory maximum under the relevant
statute(s).
3
set Zamora’s base offense level at eight. It then added 16 levels
due to his earlier deportation following a felony conviction for
transporting aliens. After a two-point reduction for acceptance of
responsibility, Zamora’s total offense level was 22. With a
criminal history category of III, the sentence range under the
Guidelines was 51 to 63 months.
Zamora objected to the constitutionality of the 16-level
enhancement and the 20-year maximum of § 1326 (b), citing Blakely
v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530
U.S. 466 (2000), but the objections were overruled. After reducing
the total offense level by three to 19 (rendering the Guidelines
range 37 to 46 months) on its own initiative, the district court
sentenced Zamora to 37 months for the § 1326 violation.
At the sentencing hearing, Zamora also pled true to violating
his supervised release by having returned to this country after
deportation. The district court then revoked the supervised
release and sentenced him to 11 months in prison, with that
sentence to run consecutively to the 37-month § 1326 sentence. At
the hearing, the court stated it believed the total sentence was
“fair and appropriate sentencing under the applicable law after
considering all the relevant considerations.” Zamora timely
appealed.
II
Zamora’s challenge raises two primary issues: First, whether
his plea agreement bars this appeal; second, whether the district
4
court’s application of the Sentencing Guidelines constitutes
harmful error under the Supreme Court’s Booker decision and this
court’s precedent.4 We consider them in turn.
A
The Government contends that Zamora is barred from bringing
his challenge by the terms of the plea agreement. This argument is
foreclosed by United States v. Reyes-Celestino, 443 F.3d 451, 453
(5th Cir. 2006),5 which deals with precisely the same waiver
language, circumstances and the type of challenge as this case.
There we held that “under these circumstances, a defendant who
agreed ‘to be sentenced pursuant to the applicable Sentencing
Guidelines’ is not precluded from raising on appeal an alleged
‘Fanfan’ error.” Id. Thus Zamora is free to challenge his
sentence.
B
As noted, Zamora raised an objection at his sentencing hearing
to the mandatory application of the Guidelines in the light of
Blakely and Apprendi. His objection is sufficient to preserve the
“Fanfan” error for review, to which we apply the harmless error
standard. Reyes-Celestino, 443 F.3d at 453. Under this standard,
4
To preserve the issue for possible review by the Supreme
Court, Zamora also challenges the constitutionality of § 1326.
This argument, as he concedes, is foreclosed. See Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998); United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005).
5
See also United States v. Sibley, 448 F.3d 754, 759-60 (5th
Cir. 2006).
5
the Government carries the “arduous” burden of proving “beyond a
reasonable doubt that the district court would not have sentenced
[the defendant] differently had it acted under an advisory
Guidelines regime.” United States v. Garza, 429 F.3d 165, 170 (5th
Cir. 2005) (internal citations omitted).6
Here the Government offers two items of evidence to show that
the “Fanfan” error was harmless. First, the district court ordered
Zamora to serve his two sentences consecutively. Second, the court
stated on the record its belief that the entire sentence was “fair
and appropriate.” It is true that we have previously found an
express refusal by the district court to run two sentences
concurrently as evidence that “there could not have been harmful
error.” United States v. Prones, 145 F. App’x 481 at *1 (5th Cir.
2005) (unpublished). More recently, however, in two published
cases we reasoned that “whether imposition of consecutive sentences
is sufficient to demonstrate that a Booker error is harmless is a
fact-sensitive inquiry that must examine the relationship between
the two sentences imposed.” United States v. Woods, 440 F.3d 255,
260 (5th Cir. 2006); accord United States v. Moore, 452 F.3d 382,
392 (5th Cir. 2006). In each of those cases we remanded for a new
sentence because the consecutive sentences were given for crimes
that were not “factually related.” Moore, 452 F.3d at 392. We
6
We again reject the Government’s argument that a different
harmless error standard applies; the precedent of this court is
quite clear on this point. See, e.g., Reyes-Celestino, 443 F.3d at
453; Walters, 418 F.3d at 464.
6
reached this conclusion because the court could not “ascribe any
motivation to the district court other than adherence to the
default rule that totally unrelated crimes should ordinarily
receive distinct punishment.” Woods, 440 F.3d at 260.
Thus the question before us is whether Zamora’s two crimes are
“factually related” such that we are persuaded this “default rule”
does not obtain. Again, his 37-month sentence was imposed for
violating § 1326 (being present in this country illegally after
deportation) and his 11-month sentence was for violating his
supervised release term for the prior crime of alien trafficking.
Although it is certainly true that the violation of § 1326 was the
trigger for revoking Zamora’s supervised release and for sentencing
him to the 11 months in prison, it is also true that these two
sentences are punishing factually unrelated crimes. The 11-month
sentence is only a more severe form of punishment than supervised
release for Zamora’s prior, unrelated crime of alien trafficking.7
Consequently we do not believe that this case can be distinguished
7
In a slightly different context we recently held that
“[s]upervised release [is a] component[] of the original sentence[]
... [and therefore its] revocation is not a separate charge, but
rather a continuation of the original charge.” United States v.
Valdez-Sanchez, 414 F.3d 539, 542 (5th Cir. 2005). There the
defendants had argued that the revocation of supervised release for
earlier crimes was based on the same conduct as their § 1326
crimes, while the Government argued revocation was merely an
extension of the earlier charges. Id. at 541 (emphasis supplied).
The logic of Valdez-Sanchez is clearly that while the same conduct
might trigger revocation of supervised release and constitute a §
1326 violation, that does not mean it is the same conduct that is
being punished in two such sentences. See id.
7
from Woods and Moore; we will not infer that the district court
meant to do anything other than provide two distinct sentences, one
for breaching the terms of supervised release related to alien
trafficking, and one for the § 1326 crime. Woods, 440 F.3d at 260.
The Government’s second argument is similarly unavailing.
Although the district court’s comment that the two sentences were
“fair and appropriate ... under the applicable law after
considering all the relevant considerations” could be read such
that the court implied that it would have given the same sentence
under an advisory Guidelines regime, such a reading is not
compelling. It is as likely that “the applicable law” the court
had in mind included what were then mandatory Sentencing
Guidelines. In any event, we conclude that this statement,
ambiguous in the context of the sentencing proceeding, is
insufficient to meet the burden the government bears, and thus the
Government has failed to show that the “Fanfan” error was harmless.
III
For the reasons explained above, we VACATE Zamora’s sentence
and REMAND for resentencing.
VACATED and REMANDED.
8