DocketNumber: 04-41662
Citation Numbers: 187 F. App'x 386
Judges: Garza, Per Curiam, Prado, Smith
Filed Date: 6/26/2006
Status: Non-Precedential
Modified Date: 8/2/2023
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 26, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-41662 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISAAC CALDWELL, Defendant-Appellee. -------------------- Appeal from the United States District Court for the Southern District of Texas No. 2:04-CR-141-ALL -------------------- Before SMITH, GARZA, and PRADO, Circuit Judges. PER CURIAM:* Isaac Caldwell appeals his 57-month guilty-plea sentence for possession of a firearm by a convicted felon,18 U.S.C. §§ 922
- (g)(1) and 924(a)(2). He argues that his sentence must be vacated and his case remanded for resentencing because the district court committed reversible error by sentencing him pursuant to a manda- * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circum- stances set forth in 5TH CIR. R. 47.5.4. No. 04-41662 -2- tory sentencing guidelines regime. Caldwell’s objection pursuant to Blakely v. Washington,542 U.S. 296
(2004), was sufficient to preserve this issue for appeal. See United States v. Rodri- guez-Mesa,443 F.3d 397
, 404 (5th Cir. 2006). The sentence pursuant to a mandatory guidelines scheme con- stitutes Fanfan error. See United States v. Booker,543 U.S. 220
(2005); United States v. Walters,418 F.3d 461
, 463-64 (5th Cir. 2005). The government thus bears the burden of proving beyond a reasonable doubt that the district court would have imposed the same sentence had the guidelines been advisory only. See Walters,418 F.3d at 464
. If the government cannot show that the error was harmless, we ordinarily will vacate and remand for resentencing.Id. at 463
. The government cannot meet its burden. Seeid. at 464-66
. Because the Fanfan error requires remand for resentencing, we need not address Caldwell’s remaining challenge to his sentence. See United States v. Akpan,407 F.3d 360
, 377 n.62 (5th Cir. 2005). Accordingly, we vacate Caldwell’s sentence and remand for resentencing. CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.