United States v. Young , 212 F. App'x 325 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 4, 2007
Charles R. Fulbruge III
Clerk
No. 04-20897
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANTHONY YOUNG
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-233-1
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Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.
PER CURIAM:*
Anthony Young appeals his 15-month sentence for marriage
fraud. Citing United States v. Booker, 543 U.S. 220 (2005), he
argues that the district court erred in increasing his criminal
history based on its conclusion that, at the time of his offense,
he had been released from custody for less than two years and was
on parole. Young also argues that the district court committed
Fanfan error when it sentenced him pursuant to a mandatory
guidelines system. Because we conclude that the district court
*
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this opinion should not be published and is not precedent except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. 04-20897
-2-
committed Fanfan error when it sentenced Young pursuant to a
mandatory guidelines system, see United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.) cert. denied,
126 S. Ct. 267 (2005), we decline to address Young’s argument
that the district court’s factfinding amounted to Booker error.
See United States v. Apkan, 407 F.3d 360, 377 n.62 (5th Cir.
2005).
We review a preserved Fanfan challenge for harmless error.
United States v. Rodriguez-Mesa, 443 F.3d 397, 404 (5th Cir.
2006). The Government has not met its arduous burden of
demonstrating that the district court would have imposed the same
sentence absent its mandatory application of the Sentencing
Guidelines. See United States v. Zamora-Vallejo, F.3d ,
2006 WL 3334475, *2 (5th Cir. Nov. 17, 2006); United States v.
Garza, 429 F.3d 165, 170 (5th Cir. 2005), cert. denied, 126 S.
Ct. 1444 (2006). Accordingly, we VACATE Young’s sentence and
REMAND for resentencing.