United States v. Moreno

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 18, 2005
Charles R. Fulbruge III
Clerk
No. 05-40170
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICKY M. MORENO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(1:04-CR-623-1)
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Before JONES, WIENER, and DeMOSS, Circuit Judges
PER CURIAM:*
Defendant-Appellant Vicky M. Moreno appeals her conviction and
sentence of 37 months of imprisonment following her guilty-plea
conviction for possession with intent to distribute “approximately
44.52 kilograms” of marijuana. The district court arrived at
Moreno’s sentence after determining that Moreno possessed an
equivalent of 64.57 kilograms of marijuana, a fact neither admitted
by Moreno 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this opinion should not be published and is not precedent except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.
Moreno challenged the drug quantity found by the court,
arguing that such judicial fact-finding violated Blakely v.
Washington, 124 S. Ct. 2531 (2004). 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)).
After Moreno was sentenced, the Supreme Court issued its
decision in United States v. Booker, 125 S. Ct. 738 (2005),
applying its holding in Blakely to the Federal Sentencing
Guidelines. As the district court enhanced Moreno’s sentence based
on its factual determination, other than the fact of a prior
conviction, the district court committed legal error under Booker.
Moreno preserved her argument by raising it in the district
court. Ordinarily, when a defendant presents a preserved Booker
issue, we vacate the sentence and remand, unless the government can
demonstrate that the error was harmless beyond a reasonable doubt.
United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005).
Here, the government has waived argument with respect to harmless
error. Accordingly, the government cannot demonstrate harmless
error, and Moreno’s sentence must be vacated and remanded for
resentencing. In light of this conclusion, we need not reach
Moreno’s claim that her sentence must be vacated because she was
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sentenced under a mandatory application of the guidelines. See
United States v. Akpan, 407 F.3d 360, 377 n. 62 (5th Cir. 2005).
Moreno 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.
Moreno concedes that his argument is foreclosed by United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but raises the issue
to preserve it for possible Supreme Court review.
VACATED AND REMANDED.
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