     Case: 09-40420     Document: 00511185986          Page: 1    Date Filed: 07/27/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 27, 2010
                                     No. 09-40420
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HUMBERTO GARCIA-TOSCANO, also known as Humberto Garcia,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 7:03-CR-674-1


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
        Humberto Garcia-Toscana (Garcia) challenges the 360-month sentence he
received following his conviction by jury for conspiracy to possess with the intent
to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C.
§ 846, possession with the intent to distribute more than 100 but less than 1,000
kilograms of marijuana, in violation of 21 U.S.C. § 841(a), money laundering, in
violation of 18 U.S.C. § 1956(a)(1)(A), engaging in monetary transactions in
property derived from specified unlawful activity, in violation of 8 U.S.C.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40420     Document: 00511185986 Page: 2       Date Filed: 07/27/2010
                                  No. 09-40420

§ 1956(a)(1)(B), and engaging in monetary transactions in property derived from
specified unlawful activity, in violation of 18 U.S.C. § 1957. Garcia argues that
his sentence is invalid because it was imposed under the formerly mandatory
version of the Guidelines, based on facts that were neither admitted by him nor
found by a jury. He also contends that the district court erred in enunciating an
alternate sentence.
      Garcia’s assertion of sentencing error is meritorious. See United States v.
Booker, 543 U.S. 220 (2005). He preserved this error by raising an objection to
his sentence grounded in Blakely v. Washington, 542 U.S. 296 (2004). See
United States v. Garza, 429 F.3d 165, (5th Cir. 2005). When, as is the case here,
a Booker error has been preserved in the district court, we “will ordinarily vacate
the sentence and remand, unless [this court] can say the error is harmless under
Rule 52(a) of the Federal Rules of Criminal Procedure.” United States v. Pineiro,
410 F.3d 282, 284 (5th Cir. 2005) (internal quotation marks and citation
omitted). The Government has not met its “arduous” burden of demonstrating
“beyond a reasonable doubt that the Sixth Amendment Booker error did not
affect the sentence that [Garcia] received.” Id. at 285, 287. Further, it would not
be appropriate for us to impose the alternate sentence articulated by the district
court. See United States v. Story, 439 F.3d 226, 233 (5th Cir. 2006); United
States v. Adair, 436 F.3d 520, 524, 527-29 (5th Cir. 2006).        Consequently,
Garcia’s sentence is VACATED, and the case is REMANDED                        FOR
RESENTENCING. His convictions are AFFIRMED.




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