United States v. Salinas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 7, 2005
Charles R. Fulbruge III
Clerk
No. 04-40725
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL SALINAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-106-7
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Joel Salinas appeals his conviction and sentence of 168
months of imprisonment imposed after he pleaded guilty to
possession with intent to distribute “more than 5 kilograms of
cocaine, that is approximately 66 kilograms of cocaine.” The
district court arrived at Salinas’s sentence after determining
that he possessed an equivalent of over 126,000 kilograms of
marijuana, a fact neither admitted by Salinas nor found by a jury
beyond a reasonable doubt.
*
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this opinion should not be published and is not precedent except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. 04-40725
-2-
After Salinas was sentenced, the Supreme Court issued its
decision in United States v. Booker, 125 S. Ct. 738 (2005),
applying its holding in Blakely v. Washington, 124 S. Ct. 2531
(2004), to the Federal Sentencing Guidelines. Blakely reaffirmed
the rule that “‘[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt.’” Blakely, 124 S. Ct. at 2536 (quoting
Apprendi v. New Jersey, 530 U.S. 466 (2000)).
Salinas argues that his sentence violates Booker because the
court judicially determined the amount of drugs for which he was
responsible and upon which his sentence was based. The district
court’s enhancement of Salinas’s sentence based on its factual
determination, other than the fact of a prior conviction, was
error under Booker.
Because Salinas preserved this objection in the district
court, see United States v. Akpan, 407 F.3d 360, 376 (5th Cir.
2005), review is for harmless error. United States v. Pineiro,
410 F.3d 282, 284 (5th Cir. 2005). The Government bears the
burden of establishing, beyond a reasonable doubt, that the error
was harmless. See id. The Government has not met this burden.
Thus, we need not reach Salinas’s assertion of Fanfan error.
Salinas also argues that 21 U.S.C. § 841 is facially
unconstitutional in light of Apprendi because the statute’s
structure treats drug types and quantities as sentencing factors.
No. 04-40725
-3-
Salinas concedes that his argument is foreclosed by United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but he raises
the issue in order to preserve it for possible Supreme Court
review. Accordingly, Salinas’s conviction is AFFIRMED, but we
VACATE Salinas’s sentence, and REMAND for resentencing in light
of Booker.