United States v. Ricardo Nathanilian Johnson-Cuervo , 138 F. App'x 277 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 29, 2005
No. 04-15162 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-20216-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO NATHANILIAN JOHNSON-CUERVO,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 29, 2005)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Ricardo Nathanilian Johnson-Cuervo appeals his concurrent sentences for
importation of morphine, 21 U.S.C. §§ 952(a) and 960(b)(3), and possession with
intent to distribute morphine, 21 U.S.C. § 841(a)(1) and (b)(1)(C), contending the
use of an unproven and unadmitted drug quantity to impose sentences under a
mandatory Guidelines scheme violated his Sixth Amendment rights, as set forth in
United States v. Booker, 125 S. Ct. 738 (2005).
Because Johnson-Cuervo preserved a Blakely/Booker objection in the
district court, we review the challenge to his sentence de novo. United States v.
Paz, 405 F.3d 946, 948 (11th Cir. 2005). Booker error must be disregarded if it
was harmless. Id. To find harmless error, we must determine the error did not
affect the defendant’s substantial rights. A constitutional error, such as Booker
error, does not affect substantial rights, if it is harmless beyond a reasonable
doubt. Id. This standard is met only where it is clear beyond a reasonable doubt
the error did not contribute to the sentence obtained. The government has the
burden of showing the error did not affect the defendant’s substantial rights. Id.The Government has not attempted to carry its burden of showing the error
was harmless. Instead, the Government concedes error and joins Johnson-Cuervo
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in requesting a remand for resentencing. Accordingly, we vacate Johnson-
Cuervo’s sentences and remand for resentencing.
VACATED AND REMANDED.
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