United States v. Vasquez-Castaneda

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 16, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 04-41730
Summary Calendar
____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MARIO HUMBERTO VASQUEZ-CASTANEDA
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. 2:04-CR-301-ALL
_________________________________________________________________
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-appellant Mario Humberto Vasquez-Castaneda appeals
the sentence imposed as a result of his guilty plea to one count
of being unlawfully present in the United States following
deportation in violation of 8 U.S.C. § 1326(a), (b). For the
following reasons, we VACATE Vasquez’s sentence and REMAND for
resentencing in light of the Supreme Court’s decision in United
*
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that this opinion should not be published and is not precedent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.
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States v. Booker, 543 U.S. 220 (2005).
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 16, 2004, Mario Humberto Vasquez-Castaneda
(“Vasquez”) pleaded guilty without the benefit of a plea
agreement to one count of being present in the United States
following deportation in violation of 8 U.S.C. § 1326(a), (b).
The presentence report (“PSR”) assessed a based offense level of
eight under U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2004)
[hereinafter U.S.S.G.], recommended a twelve-level increase under
U.S.S.G. § 2L1.2(b)(1)(B) based on two previous drug trafficking
convictions, and recommended a three-level decrease for
acceptance of responsibility under U.S.S.G. § 3E1.1, yielding a
total offense level of seventeen. With a criminal history
category of IV, Vasquez’s applicable guideline range was thirty-
seven to forty-six months imprisonment followed by two to three
years of supervised release.
Vasquez objected to the PSR, asserting that the twelve-level
enhancement and his criminal history could not be considered in
light of Blakely v. Washington, 542 U.S. 296 (2004), because his
prior convictions were not authorized by a jury verdict. He also
contended that Almendarez-Torres v. United States, 523 U.S. 224(1997), was wrongly decided and should be overruled. The
district court adopted the recommendations in the PSR over
Vasquez’s objections and sentenced Vasquez to forty-three months
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in prison followed by three years of supervised release. The
criminal judgment was entered on November 2, 2004.
On December 9, 2004, Vasquez submitted a pro se hand-written
letter to the clerk of the district court, asking whether a
timely notice of appeal had been filed by counsel consistent with
his desire to appeal the judgment imposing his sentence.1 See R.
at 10. A defendant in a criminal case must file a notice of
appeal within ten days of entry of the judgment. FED. R. APP. P.
4(b)(1)(A). Because the district court entered judgment on
November 2, 2004, the final day for filing a timely notice of
appeal was November 17, 2004. FED. R. APP. P. 26(a)(2). On
February 11, 2005, this court remanded to the district court for
a determination of whether the untimely filing of the notice of
appeal was due to excusable neglect or good cause. See FED. R.
APP. P. 4(b)(4) (allowing the district court to extend the time
to file a notice of appeal for “a period not to exceed 30 days
from the expiration of the time otherwise prescribed by this Rule
4(b)”). On March 15, 2005, the district court found good cause
for granting Vasquez’s request for an extension of time to file a
notice of appeal based on the totality of the record. Because
the district court deemed Vasquez’s notice of appeal to be
1
Although Vasquez was represented by counsel during his
proceedings before the district court, he appears pro se before
this court on appeal. On remand, the district court may wish to
inquire whether Vasquez wants counsel in connection with his
resentencing.
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effective, we now turn to the merits of his appeal.
II. STANDARD OF REVIEW
Although the parties appear to agree that this court should
review the case for plain error, this court is not bound by the
parties’ assertion of the appropriate standard of review. See
United States v. Vonsteen, 950 F.2d 1086, 1091 (5th Cir. 1992)
(en banc) (“No party has the power to control our standard of
review. . . . If neither party suggests the appropriate standard,
the reviewing court must determine the proper standard on its
own[.]”). It is undisputed that Vasquez raised a challenge under
Blakely v. Washington, 542 U.S. 296 (2004), to the calculation of
his sentence under the Sentencing Guidelines. We have previously
held that such an objection preserves a Booker or Fanfan error.
See United States v. Rodriguez-Mesa, 443 F.3d 397, 404 (5th Cir.
2006) (noting that raising a Blakely objection in the district
court preserves Booker or Fanfan error on appeal). We have
determined that the claim preserved here is more properly
characterized as Fanfan error, as opposed to Booker error. See
United States v. Robles-Vertiz, 442 F.3d 350, 352 n.4 (5th Cir.
2006) (“This case presents what we have termed Fanfan error
because the district court sentenced [the defendant] pursuant to
a mandatory guidelines system.”) (citing United States v.
Walters, 418 F.3d 461, 463-64 (5th Cir. 2005)).2 When there is a
2
As in Robles-Vertiz, it is clear that there was no
“Booker” error or Sixth Amendment violation in this case because
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preserved Fanfan claim, as here, “the only question is whether
the government has met its burden to show harmless error beyond a
reasonable doubt in the imposition of [the defendant’s]
sentence.” Walters, 418 F.3d at 464; see also Rodriguez-Mesa,
443 F.3d at 404. Unless the government meets its burden under
the harmless error analysis, this court will “ordinarily vacate
the sentence and remand” if the defendant preserved his Fanfan
claim in the district court. United States v. Mares, 402 F.3d
511, 520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
III. DISCUSSION
Vasquez argues that the district court erred in sentencing
him under a mandatory guidelines regime, in violation of United
States v. Booker, 543 U.S. 220 (2005). For reasons not entirely
clear from the record, however, Vasquez specifically declined to
order a transcript of his sentencing proceedings for this
appeal.3 R. at 20; see also FED. R. APP. P. 10(b)(1)(b) (providing
that the appellant may, in lieu of ordering a transcript from the
reporter, “file a certificate stating that no transcript will be
the only enhancement to the sentence was for Vasquez’s prior drug
trafficking convictions. See Robles-Vertiz, 442 F.3d at 352,
n.4; see also Booker, 543 U.S. at 224 (reaffirming 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”) (emphasis added).
3
It is not clear whether Vasquez was aware of his right to
transcripts at the government’s expense when he proceeded pro se
and in forma pauperis on appeal. See 28 U.S.C. § 753(f).
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ordered”). The government could have moved to supplement the
record on appeal with a copy of the sentencing transcript even
though Vasquez had failed to request it. See FED. R. APP. P.
10(e)(2) (stating that the parties can stipulate to a
supplemental record if relevant material to either party was
omitted “by error or accident”). Instead, the government,
operating under the erroneous belief that Vasquez had not
preserved his Fanfan error by raising a Blakely objection before
the district court, contends that Vasquez cannot identify “an
indication in the record from the judge’s remarks or otherwise
that the judge would have reached a different conclusion in an
advisory regime” under the plain error standard of review. Gov’t
Br. at 7. Under the harmless error analysis applied to preserved
Fanfan errors, however, we have previously rejected this argument
because it is the government that must meet its burden of
demonstrating that the district court would have imposed the same
sentence even under an advisory guidelines regime.
Although this argument would be persuasive under plain-
error review, this argument fails to show that the
preserved error was harmless. It is the government that
must show that the sentencing judge would have imposed
the same sentence under an advisory sentencing scheme.
The judge’s silence as to whether or not he would have
imposed a different sentence under an advisory regime
does not satisfy this burden. If we were to accept this
argument to find that the error was harmless, we would
effectively be relieving the government of its burden and
placing it on the defendant.
United States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005); see
also United States v. Woods, 440 F.3d 255, 261 (5th Cir. 2006)
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(“[The defendant’s] inability to point to evidence in the record
that the district court would have imposed a different sentence
is irrelevant under harmless error analysis. Because it is
unclear whether the district court would have imposed the same
sentence, the error cannot be considered harmless.”).4
Accordingly, we conclude that the government has not met its
burden of proving harmless error beyond a reasonable doubt.
Vasquez also challenges the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). As Vasquez’s concedes in his brief,
this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), in which the Supreme Court held
that treatment of prior convictions as sentencing factors under
§ 1326(b)(1) and (2) was constitutional. “This court has
repeatedly rejected arguments like the one made by [Vasquez] and
has held that Almendarez-Torres remains binding despite
4
We similarly reject the government’s implication that the
district court’s imposition of a sentence in the middle of the
guidelines range somehow satisfies its burden of demonstrating
harmless error beyond a reasonable doubt. Cf. United States v.
Garza, 429 F.3d 165, 170-71 (5th Cir. 2005) (noting, in a case
reviewing an unpreserved Booker error under a plain error
standard of review, that “this Circuit has rejected the claim
that a court’s decision to sentence in the middle of a Guidelines
range establishes Booker error as harmless”) (citing United
States v. Yancey, 2005 WL 1608590, at *1 (5th Cir. July 11, 2005)
(unpublished) (per curiam); United States v. Benavides, 2005 WL
2055884, at *1 (5th Cir. Aug. 26, 2005) (unpublished)).
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Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th
Cir.), cert. denied, 126 S. Ct. 298 (2005). We therefore decline
to address this issue at any greater length on this appeal.
IV. CONCLUSION
For the foregoing reasons, we VACATE Vasquez’s sentence and
REMAND for resentencing under the advisory guidelines regime.
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