                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   December 20, 2005
                                 FOR THE FIFTH CIRCUIT                           Charles R. Fulbruge III
                                                                                         Clerk


                                 No. 04-30635c/w 04-31118



       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                             versus

       PEDRO PABLO MORALES,

                                                           Defendant- Appellant.


                     Appeals from the United States District Court
                         for the Eastern District of Louisiana
                           (USDC No. 2:03-CR-364-4-N)
           _________________________________________________________


Before REAVLEY, DAVIS and WIENER, Circuit Judges.

PER CURIAM:*

       Morales appeals his conviction on a multi-count indictment for drug offenses and

the 192-month sentence imposed by the district court on the grounds that the court

unconstitutionally enhanced his sentence on the basis of facts neither pleaded to nor

proved in violation of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). For


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 following reasons, we affirm the conviction but remand for the limited purpose of

consideration by the district court of whether it will impose a different sentence under the

now-advisory sentencing guidelines:

       1.     Because the district court applied a sentence enhancement for a judge-

              determined leadership role under a mandatory guidelines regime, Booker

              error occurred. United States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005).

       2.     Because Morales preserved the Booker error, we review the sentence

              imposed by the district court for harmless error. Id. at 376. Under harmless

              error Booker review, the Government bears the burden of demonstrating

              that the error was harmless by demonstrating beyond a reasonable doubt

              that the district court would not have sentenced Morales differently had it

              acted under an advisory Guidelines regime. Id. at 377.

       3.     While the 240-month statutory minimum for Morales’s crime exceeds the

              upper limits of both the enhanced guideline range (168-210 months) and the

              unenhanced guideline range (135-168 months), we cannot conclude that the

              district court’s failure to apply the correct range was harmless. Under 18

              U.S.C. § 3553(e), the district court was authorized to depart downwardly

              from the statutory minimum and was moved to do so by the Government,

              pursuant to U.S. SENTENCING GUIDELINES MANUAL § 5K1.1 The court

              selected a sentence from the middle of the 168 to 210 month range (48

              months below the statutory minimum), rather than the 168-month sentence

                                             2
         at the low end of that range that was recommended by the Government (72

         months below the statutory minimum). Had the unenhanced range of 135

         to 168 months been the benchmark, it is possible both that the Government

         would have recommended the low end of that range and that the district

         court, in compromise, might have selected a mid-range number between

         135 and 168 months.

    4.   We leave to the discretion of the district court whether to resentence on

         remand. See Akpan, 407 F.3d at 377 n.62. We clarify that, post-Booker, a

         sentencing judge remains entitled to find by a preponderance of the

         evidence all facts relevant to the determination of a Guideline sentencing

         range and all facts relevant to the determination of a non-Guidelines

         sentence. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The

         Booker error here lay in such judicial fact finding under a mandatory

         guidelines scheme. Id.

    5.   The Booker error in this case pertains only to the sentence imposed.

         Morales has raised no grounds on which his conviction may be overturned.

AFFIRMED AND REMANDED.




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