United States v. Aguilar-Garcia , 167 F. App'x 389 ( 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 17, 2006
Charles R. Fulbruge III
Clerk
No. 04-41683
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EZEQUIEL LUIS AGUILAR-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-1084-ALL)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Ezequiel Luis Aguilar-Garcia (Aguilar)
appeals the sentence imposed following his guilty-plea conviction
for being illegally present in the United States following
deportation. As his sole point of error on appeal, Aguilar asserts
that the district court committed reversible error when it
sentenced him pursuant to a mandatory application of the Sentencing
Guidelines held unconstitutional in United States v. Booker, 543
U.S. 220 (2005).
*
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this opinion should not be published and is not precedent except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.
The district court committed “Fanfan error” when it sentenced
Aguilar pursuant to a mandatory application of the Sentencing
Guidelines. See United States v. Valenzuela-Quevedo, 407 F.3d 728,
733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005). We review a
preserved Fanfan challenge for harmless error. See United States
v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). Under the harmless-
error standard, the government bears the “arduous burden” of
proving beyond a reasonable doubt that the district court would not
have sentenced the defendant differently under an advisory-only
guideline scheme. Id. at 464; United States v. Garza, 429 F.3d
165, 170 (5th Cir. 2005) (quotation and citation omitted).
We have rejected the argument that a “sentence in the middle
of a Guidelines range establishes Booker error as harmless.”
Garza, 429 F.3d at 171. We have also rejected the notion that a
district court’s refusal to grant a downward departure establishes
harmlessness. Id. Although the sentencing court did note that
Aguilar had several immigration violations, it gave no indication
that it would have imposed the same sentence under an advisory
scheme. Accordingly, we VACATE Aguilar’s sentence and REMAND the
case for resentencing. See Garza, 429 F.3d at 171.
2