United States v. De La Fuente

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 25, 2007
Charles R. Fulbruge III
Clerk
No. 05-40084
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL DE LA FUENTE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-476-ALL
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Manuel De La Fuente pleaded guilty to possession with intent
to distribute in excess of 100 kilograms of marihuana. He was
sentenced to 109 months of imprisonment and five years of
supervised release. De La Fuente argues that the district court
committed reversible error when it sentenced him pursuant to the
mandatory sentencing guidelines system held unconstitutional in
United States v. Booker, 543 U.S. 220 (2005), which requires that
his sentence be vacated and remanded for resentencing. He
*
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this opinion should not be published and is not precedent except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. 05-40084
-2-
contends that based on the record and the sentencing hearing, the
Government cannot show harmless error.
De La Fuente’s objection in the district court based on
Blakely v. Washington, 542 U.S. 296 (2005) preserved his Fanfan
challenge for review for harmless error. United States v. Reyes-
Celestino, 443 F.3d 451, 453 (5th Cir.), cert. denied, 126 S. Ct.
2309 (2006); United States v. Walters, 418 F.3d 461, 463 (5th
Cir. 2005).**
The district court erred by sentencing De La Fuente under
the formerly mandatory guidelines system. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,
126 S. Ct. 267 (2005). In light of the Government’s concession
that it cannot show harmless error on the current record, and
considering the district court’s statements at sentencing about
the potential effect of a decision in Booker, we conclude that
the Government has not shown harmless error. De La Fuente’s
sentence is vacated and this case is remanded for resentencing in
accordance with Booker. See Walters, 418 F.3d at 464-66.
Because we remand based on the Fanfan error, we need not
address the remaining sentencing issues raised by De La Fuente
concerning the application of the adjustment for obstruction of
justice under U.S.S.G. § 3C1.1; the corresponding denial of
**
“Fanfan” error, one of two types of error addressed in
Booker, “is found where the district court applied the mandatory
Guidelines to enhance a defendant's sentence absent any Sixth
Amendment Booker error.” Walters, 418 F.3d at 463.
No. 05-40084
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acceptance of responsibility; whether the district court’s
finding of obstruction violated the Sixth Amendment; whether De
La Fuente’s subsequent conviction on the escape charge made the
obstruction of justice issue moot; and whether the finding on the
quantity of drugs violated Booker. See United States v. Akpan,
407 F.3d 360, 377 n.62 (5th Cir. 2005) (declining to address
other claims of sentencing error when remanding pursuant to
Booker); United States v. Mendoza-Blanco, 440 F.3d 264, 266 n.10
(5th Cir.), cert. denied, 126 S. Ct. 2314 (2006) (Fanfan).
SENTENCE VACATED; REMANDED FOR RESENTENCING.