United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 11, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40963
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYNALDO GARCIA, also known as Chucky,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-169-2
______________________
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
Reynaldo Garcia appeals his sentence following his guilty-plea
to conspiracy to possess with intent to distribute more than 1,000
kilograms of marijuana in violation of 21 U.S.C. §§ 846 and
841(a)(1), (b)(1)(A). The district court calculated Garcia’s base
offense level based on relevant conduct involving 48,651.7
kilograms of marijuana. Garcia argues, inter alia, that the
district court’s drug quantity finding violated the Sixth Amendment
and United States v. Booker1 because he did not plea or admit to
1
125 S. Ct. 738 (2005).
the relevant conduct and it was not found by a jury.
In Booker, the Supreme Court held that “[a]ny fact (other than
a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea
of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.”2 Booker struck down
18 U.S.C. § 3553(b)(1), thus rendering the Guidelines advisory.3
Garcia did not expressly object in the district court based on
Booker or the Sixth Amendment. Consequently, our review is for
plain error only.4 We may correct an error that the appellant
failed to raise in the district court only if there is “(1) error,
(2) that is plain, and (3) that affect[s] substantial rights.”5 If
these conditions are met, we may exercise our discretion to notice
a forfeited error only if “the error seriously affect[s] the
fairness, integrity, or public reputation of judicial
proceedings.”6
The first two prongs of the plain error test are clearly met
in this case.7 In order to satisfy the third prong, Garcia must
2
Id. at 756.
3
Id. at 764-65.
4
See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
5
United States v. Cotton, 122 S. Ct. 1781, 1785 (2002) (internal quotation
marks and citations omitted).
6
Id. (internal quotation marks and citations omitted).
7
See Mares, 402 F.3d at 520-21.
2
demonstrate that “the sentencing judge--sentencing under an
advisory scheme rather than a mandatory one--would have reached a
significantly different result.”8 Although we have held that an
appellant has a “difficult burden to establish that the error
affected his substantial rights,”9 we are persuaded that Garcia has
done so in the present case.
At Garcia’s sentencing, the court discussed at length the
difficulties of long prison sentences and their affect on families.
The court noted that Garcia was a husband and father of small
children, and opined: “You [Garcia] are a young man and I would
prefer to sentence you to a lesser sentence than required under the
guidelines but I’m going to follow the law and assess punishment
appropriately based on the circumstances that are presented before
me.” The court then proceeding to sentence Garcia to 262 months’
imprisonment--at the very bottom of the applicable Guidelines
range. We have held that this type of evidence indicates a
likelihood that the district court would have imposed a lesser
sentence under an advisory Guidelines regime.10 Furthermore, we
find that Garcia has carried his burden under the fourth prong of
8
Id. at 521.
9
United States v. Pennell,---F.3d----, 2005 WL 1030123, at *5 (5th Cir.
May 4, 2005).
10
See id.
3
the plain error test.11 Accordingly, Garcia’s sentence must be
vacated and remanded for resentencing.
Because the district court’s drug quantity determination
requires resentencing, we do no reach Garcia’s other claimed
sentencing errors and leave to the district court’s discretion
whether it will impose the same sentence with the same departures
or enhancements.12 Garcia’s argument that a greater sentence at
resentencing would implicate ex post facto concerns is premature,
and we do not address it.13
VACATED AND REMANDED.
11
See id. (sentencing error that results in a dramatic increase in the
recommended imprisonment range “seriously affects the fairness, integrity, or
public reputation of the judicial proceedings” (quoting United States v. Gracia-
Cantu, 302 F.3d 308, 313 (5th Cir. 2002))).
12
See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
13
See Amar v. Whitley, 100 F.3d 22, 23 (5th Cir. 1996) (finding that we
lack the “jurisdiction and the judicial resources to issue an advisory opinion”).
4