IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 7, 2008
No. 04-11015 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FREDERICO GONZALEZ, also known as Viejon
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
No. 3:03-CR-329
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Frederico Gonzalez appeals his guilty-plea conviction and sentence for
conspiracy to distribute and possession with the intent to distribute various
controlled substances and conspiracy to launder monetary instruments. Finding
no error in his conviction, we affirm the conviction. However, for the reason set
forth below, we vacate his sentence and remand for resentencing.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-11015
Gonzalez first attacks his conviction, arguing that the district court
violated FED. R. CRIM. P. 11(c)(5) by purportedly rejecting his plea agreement
without informing him that his guilty plea could be withdrawn. After reviewing
the record, however, it is clear that there was no plea agreement for the district
court to reject. What Gonzalez points to as a “plea agreement” was merely his
counter offer to the government’s plea offer. Although the government never
accepted the terms of this counter-offer, Gonzalez filed it with the district court.
Because of this, the district court struck the document and Gonzalez conceded
during his rearraignment that he never had an agreement with the government.
Accordingly, the district court did not err in accepting Gonzalez’s guilty plea and
thus, we AFFIRM his conviction.
Gonzalez does raise colorable claims regarding the propriety of his
sentence, however. He argues that his sentence, which the district court
imposed prior to the United States Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), is unconstitutional in light of that decision. He also
contends that the district court erred in its determination of the quantity of
drugs attributable to him and in applying various enhancements to his sentence.
Gonzalez preserved his claim that he should have been sentenced under
non-mandatory Guidelines by objecting under Blakely v. Washington, 542 U.S.
296 (2004), see United States v. Olis, 429 F.3d 540, 543-44 (5th Cir. 2005), and
the government concedes that it cannot show that this error was harmless. See
United States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005). It is clear that the
district court treated the Guidelines as mandatory, and nothing in the record
indicates that the court would have imposed the same sentence under an
advisory Guidelines system. Where, as here, a Booker error has been preserved
in the district court and this court cannot say that the error is harmless, this
court “will ordinarily vacate the sentence and remand” for resentencing. Id. at
284 (internal quotation mark and citation omitted).
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No. 04-11015
As this case must be remanded for resentencing, we decline to address
Gonzalez’s particular claims concerning the quantity of drugs attributable to him
and the enhancements applied to his sentence. Instead, we “leave to the
discretion of the district court, whether in its discretion, it will impose the
identical sentence with the identical departures or enhancements, or both.”
United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005). To the extent
that these claims remain relevant after resentencing, Gonzalez may pursue
them in a subsequent appeal.
Gonzalez’s sentences on both counts are VACATED and the case is
remanded for resentencing under Booker. Gonzalez’s motions to proceed pro se
and to relieve counsel are DENIED as untimely. Counsel’s motion to withdraw
is likewise DENIED.
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