United States v. Sealed 3

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2006
Charles R. Fulbruge III
Clerk
No. 04-41061
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEALED DEFENDANT 3,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CR-74-3-PB-DDB
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Sealed Defendant 3 (Defendant) appeals the sentence that she
received after she pleaded guilty to conspiracy to possess with
intent to distribute one kilogram or more of heroin and five or
more kilograms of cocaine. Defendant argues that the sentence
imposed must be remanded under Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005),
because the district court deemed the Guidelines mandatory.
Because the Government does not address Defendant’s appeal
*
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this opinion should not be published and is not precedent except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. 04-41061
-2-
waiver, it has waived its right to enforce it. See United States
v. Lang, 440 F.3d 212, 213 (5th Cir. 2006).
Regardless whether the error Defendant has identified is
characterized as a Booker or Fanfan error**, Defendant preserved
that error by raising a Blakely objection in the district court.
See United States v. Rodriguez-Mesa, ___ F.3d ___, No. 04-41757,
2006 WL 633280 at *5 (5th Cir. Mar. 15, 2006). When a preserved
Booker or Fanfan error is presented, as here, this court looks to
whether the Government has met its burden to show harmless error
beyond a reasonable doubt in the imposition of the defendant’s
sentence. Id. Based on the record before the court, this court
cannot determine what the district court would have done absent
the mandatory Guidelines. Therefore, the Government has not met
its burden of proving that the Booker or Fanfan error was
harmless beyond a reasonable doubt.
Defendant’s argument that the Ex Post Facto and Due Process
Clauses prohibit the district court from applying Booker’s
remedial opinion to her case was squarely rejected by this court
in United States v. Charon, ___ F.3d ___, No. 05-10360, 2006 WL
574274 at *9 (5th Cir. March 10, 2006).
**
See United States v. Martinez-Lugo, 411 F.3d 597, 600
(5th Cir.) (referring to Ducan Fanfan, the second defendant in
the consolidated opinion in Booker, who did not experience Sixth
Amendment error), cert. denied, 126 S. Ct. 464 (2005); see also
United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)
(discussing the difference between Booker and Fanfan error).
No. 04-41061
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Defendant’s sentence is VACATED, and the case is REMANDED
for further proceedings.