                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                         November 14, 2005

                          _______________________                    Charles R. Fulbruge III
                                                                             Clerk
                                No. 05-40047
                          _______________________

                        UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                    versus

                          JACINTO CORTES-GARCIA,

                                                          Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                       Criminal No. 7:04-CR-138


Before JONES, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

            Jacinto Cortes-Garcia pleaded guilty to being unlawfully

present   in   the   United    States     after   having    been    deported,       a

violation of 8 U.S.C. § 1326.           He appeals his 57-month sentence

pursuant to United States v. Booker, 125 S. Ct. 738 (2005).1

Because    Cortes-Garcia      preserved    his    claim    of   error     and    the

Government cannot demonstrate the error is harmless, we VACATE




      *
            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opinion should not be published and is not precedent except under the limited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.
      1
             To preserve the issue for possible Supreme Court review, Cortes-
Garcia also challenges the constitutionality of § 1326, but he correctly concedes
that this argument is foreclosed. See Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998); United States v. Alfraro, 408 F.3d 204, 210-11 (5th Cir.
2005), cert. denied, (Oct. 3, 2005)(No. 05-5604).
Cortes-Carcia’s sentence and REMAND to the district court for re-sentencing.

                                    BACKGROUND

              On April 5, 2004, Cortes-Garcia pleaded guilty to a

violation of 8 U.S.C. § 1326.                   A pre-sentence report (“PSR”)

calculated      Cortes-Garcia’s      total       offense      level    at    22,   which

included a sixteen-level enhancement for his prior conviction of a

crime of violence and a two-level reduction for acceptance of

responsibility.       Cortes-Garcia objected to the PSR on the basis of

Blakely v. Washington, 124 S. Ct. 2531 (2004).                   The district court

overruled this objection.           At sentencing, the court granted the

Government’s motion for an additional one-level reduction for

acceptance of responsibility, bringing the total offense level to

21, and sentenced Cortes-Garcia to fifty-seven months imprisonment.

                                    DISCUSSION

              Because the district court sentenced Cortes-Garcia under

a     mandatory    Guidelines      regime,       it    committed      Fanfan       error.

See    United     States   v.    Valenzuela-Quevado,           407    F.3d    728,    733

(5th Cir. 2005); see also United States v. Walters, 418 F.3d 461,

463    (5th   Cir.   2005)(discussing           the    difference      between     Sixth

Amendment Booker error and Fanfan error).                   The Government concedes

that    Cortes-Garcia’s         objection       on    the   basis     of    Blakely    v.

Washington, 124 S. Ct. 2531 (2004), was sufficient to preserve his

Fanfan claim.




                                            2
           This court reviews preserved Fanfan claims for harmless

error.   See United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.

2005) (“[I]f either the Sixth Amendment issue presented in Booker

or the issue presented in Fanfan is preserved in the district court

by an objection, we will ordinarily vacate and remand, unless we

can say the error is harmless under Rule 52(a) of the Federal Rules

of Criminal Procedure.”).     Thus, “the only question is whether the

government has met its burden to show harmless error beyond a

reasonable doubt in the imposition of [the defendant’s] sentence.”

Walters, 418 F.3d at 464.

           Under harmless error, an error that does not affect a

defendant’s “substantial rights” is disregarded.              FED. R. CRIM. P.

52(a).   Thus, the Government must prove beyond a reasonable doubt

that the outcome of the district court proceedings was not affected

by the imposition of the mandatory Guidelines.                In the instant

case, the Government argues that no prejudice resulted to the

defendant because he received the benefit of the Guidelines — a

three-level reduction for acceptance of responsibility. We are not

persuaded by the Government’s argument, particularly in light of

the   district   court’s   lack    of   clear   commentary    regarding     the

sentence   and   its   decision    to   sentence   at   the   bottom   of   the

applicable Guideline range.

                                  CONCLUSION




                                        3
          Accordingly,   we   VACATE   Cortes-Garcia’s   sentence   and

REMAND for resentencing.




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