                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          June 15, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-1044
          v.                                      (D.C. No. 04-CR-31-RB)
 MICHAEL ROBERT PENA,                                   (D. Colorado)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Defendant Michael Robert Pena pleaded guilty to unlawful possession of a

firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). The district court

sentenced him to 70 months’ imprisonment, the bottom of the applicable

Sentencing Guidelines range. At the sentencing hearing Defendant raised an




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.   This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
objection under Blakely v. Washington, 124 S. Ct. 2531 (2004). Defendant

appeals.

      After Defendant filed his notice of appeal but before he filed his opening

brief, the United States Supreme Court handed down United States v. Booker, 125

S. Ct. 738 (2005). He now argues that the district court committed

nonconstitutional Booker error because it sentenced him under the mandatory

guidelines regime. The government concedes that United States v. Labastida-

Segura, 396 F.3d 1140 (10th Cir. 2005), requires Defendant’s case to be

remanded for resentencing.

      We agree. We VACATE Defendant’s sentence and REMAND to the

district court for resentencing.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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