                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                              June 22, 2005
                                       TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

     UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                               No. 04-1449
     v.                                                     D.C. No. 04-CR-150
                                                                 D. Colo.
      MARIO MOLINA-ALCAY, a/k/a
Mario Molina,

              Defendant - Appellant.


                                 ORDER AND JUDGMENT *


    Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.



          Mario Molina-Alcay appeals his sentence of 18 months’ imprisonment for

    illegally reentering the United States after deportation in violation of 8 U.S.C.

    §§ 1326(a) and 1326(b)(2). He argues that his sentence is unconstitutional in

    light of United States v. Booker, 125 S. Ct. 738 (2005). We conclude that under

    United States v. Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005), the


          *
           The case is unanimously ordered submitted without oral argument pursuant
    to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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    not binding precedent, except under the doctrines of law of the case, res judicata,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.
government has not met its burden of proving that the Booker error is harmless

and REMAND for resentencing in light of Booker.

      At sentencing the district court enhanced Molina-Alcay’s sentencing range

eight levels for specific offense characteristics under § 2L1.2(b)(1)(C). At

sentencing, Molina-Alcay objected to the application of the Guidelines to his case

on the basis that they were unconstitutional under Blakely v. Washington, 124 S.

Ct. 2531 (2004). In the context of a misapplication of the guidelines, “the

Supreme Court held that ‘once the court of appeals has decided that the district

court misapplied the Guidelines, a remand is appropriate unless the reviewing

court concludes, on the record as a whole, that the error was harmless, i.e., that

the error did not affect the district court's selection of the sentence imposed.’”

Labastida-Segura, 396 F.3d at 1142-43 (quoting Williams v. United States, 503

U.S. 193, 203 (1992)). As in our recent case, United States v. Medley, 03-2026,

2005 WL 914848 (10th Cir. Apr. 21, 2005), “the burden is on the government to

establish harmlessness, and it has not attempted to do so.” Medley 2005 WL at

*3. On the contrary, the government informs us that, “in light of the panel’s

decision in [Labastida], the United States consents to remand for resentencing in

this case.” Accordingly, Molina-Alcay is entitled to be resentenced pursuant to

Booker. We therefore REMAND his sentence to the district court with direction




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to VACATE the sentence and resentence in accordance with Booker.


                                   ENTERED FOR THE COURT



                                   Carlos F. Lucero
                                   Circuit Judge




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