United States v. Lomas , 169 F. App'x 370 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-41325
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN LOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:04-CR-46-ALL
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Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Juan Lomas appeals the sentence imposed following his
guilty-plea conviction for two counts of unlawful transportation
of illegal aliens in violation of 8 U.S.C. § 1324. Lomas argues
that the district court erred in imposing his sentence under the
then mandatory United States Sentencing Guidelines held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005).
Lomas specifically objected to the sentence based on the then
pending Booker and Fanfan cases. The Government concedes that
*
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this opinion should not be published and is not precedent except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. 04-41325
-2-
Lomas’s objection based on United States v. Blakely, 542 U.S. 296(2004), at sentencing was sufficient to preserve his Fanfan
claim. See United States v. Walters, 418 F.3d 461, 463 (5th Cir.
2005)(discussing difference between Booker error and Fanfan
error). We review preserved Fanfan claims for harmless error.
United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). The Government must prove beyond a
reasonable doubt that the outcome of the district court
proceedings was not affected by the application of the mandatory
Guidelines.
The Government has not demonstrated that the Fanfan error
was harmless beyond a reasonable doubt. The district court
expressly declined to say what the sentence would be if Booker
and Fanfan were decided favorably to Lomas. The district court
did not make any comments indicating whether it would have
imposed the same sentence under an advisory guidelines system.
The case is REMANDED for reconsideration by the district
court and to resentence Lomas if appropriate.