                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
                  UNITED STATES COURT OF APPEALS
                                                              February 13, 2006
                      FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                          No. 04-51196




     UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

                                 v.

     LUIS RAUL RAMIREZ-PALOMO,

                                      Defendant-Appellant.



           Appeal from the United States District Court
                 for the Western District of Texas
                           No. 04-CR-547



Before Garwood, Davis, and Benavides Circuit Judges.

PER CURIAM:*


     Luis Raul Ramirez-Palomo (“Ramirez-Palomo”) challenges his

sentence. We vacate and remand for resentencing in light of United

States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), and its

progeny.




* Pursuant to 5th Cir. R. 47.5, this 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this opinion should not be published and is not precedent except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.
                           I. BACKGROUND

     Ramirez-Palomo   pleaded    guilty    to   a   two-count   indictment

charging him with importing and possessing with intent to distribute

five or more kilograms of cocaine.     In calculating Ramirez-Palomo’s

sentencing range, the presentence report (“PSR”) recommended a two-

point sentencing enhancement for using minors in the commission of

the offense.   See U.S.S.G. § 3B1.4.      Ramirez-Palomo objected to the

PSR, citing Blakely v. Washington, 542 U.S. 296 (2004).                In

response, the probation officer provided details of her presentence

interview with Ramirez-Palomo in which he stated that the man who

recruited him to drive the drugs across the border told him it was

easier to evade detection by bringing his wife and children with

him. Ramirez-Palomo also told the probation officer that he did not

see anything wrong with bringing his family along.        Ramirez-Palomo

carried his Blakely objection forward at sentencing.

     At Ramirez-Palomo’s sentencing hearing, which was held prior

to the Supreme Court’s ruling in United States v. Booker, the

district court denied the Blakely objection, citing that Ramirez-

Palomo admitted to the probation officer the use of minors for the

purpose of avoiding detection.    The court consequently applied the

two-point enhancement.   Ultimately, the court set Ramirez-Palomo’s

sentencing range at 108 to 135 months imprisonment per count and

sentenced him to concurrent terms of 108 months imprisonment for

each count.


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                                   II. DISCUSSION

      Ramirez-Palomo      argues    that     the   district   court    erred   in

enhancing his sentence based on facts neither admitted to nor found

by a jury beyond a reasonable doubt.           The Government counters that

Ramirez-Palomo’s statement to the probation officer satisfies the

requirement that a fact be “admitted by the defendant.” Booker, 543

U.S. at __, 125 S. Ct. at 756.        The issue, as framed by the parties,

is whether the statement to the probation officer constitutes an

admission or unconstitutional judicial fact-finding error under

Booker.   However, we do not need to reach this issue.

      Whether or not Ramirez-Palomo’s statement to the probation

officer was an admission, our analysis is unchanged.                    We have

identified two types of sentencing error in Booker’s wake.                     See

United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). First,

“Booker   error     is   found   where   the   district   court   applied      the

mandatory Guidelines and enhanced a defendant’s sentence on the

basis of facts neither admitted by him nor found by a jury beyond

a reasonable doubt, in violation of the Sixth Amendment.”                Id. at

463. Second, there is Fanfan error where the district court applied

the mandatory Guidelines to enhance a defendant’s sentence but did

not   engage   in    judicial      fact-finding.       Id.     Here,    if,     as

Ramirez-Palomo maintains, the statement was not an admission, then

Booker error exists.         Alternatively, following the Government’s

argument, if the statement was an admission, then Fanfan error


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exists.   Under either scenario, our standard of review is the same.

     We have recognized that mandatory application of the Sentencing

Guidelines is, ipso facto, erroneous after Booker.             See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005).

The Government concedes that Ramirez-Palomo preserved the error by

objecting under Blakely.       See, e.g., United States v. Garza, 429

F.3d 165, 170 (5th Cir. 2005).      Accordingly, our standard of review

is for harmless error.         See FED. R. CRIM. P. 52(a).     Under this

standard, we must vacate and remand unless the Government can prove

beyond a reasonable doubt that the district court would not have

sentenced Ramirez-Palomo differently had it acted under an advisory

Guidelines regime.   See Walters, 418 F.3d at 464; United States v.

Akpan, 407 F.3d 360, 377 (5th Cir. 2005).

     The Government has failed to meet its “arduous burden.” United

States v. Pineiro, 410 F.3d 282, 284-87 (5th Cir. 2005).               The

Government claims that the error was harmless because the sentence

was based on upon admitted facts.          It also argues that Ramirez-

Palomo failed to introduce evidence rebutting the Government’s

evidence that he used minors in the offense.             Neither of these

arguments show that Ramirez-Palomo’s sentence would have been the

same under advisory Guidelines.          The Government’s position that

Ramirez-Palomo   could   not    possibly   obtain   an   improvement   upon

resentencing without contesting the factual basis of the sentencing

enhancement ignores the district court’s post-Booker authority to


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impose a non-Guideline sentence.

     Additionally,   the   court   sentenced   Ramirez-Palomo    at   the

absolute   minimum   of    the   Guideline   range.    This     supports

Ramirez-Palomo’s argument that the court would have imposed a lesser

sentence had the Guidelines been understood as advisory. See United

States v. Rodriguez-Gutierrez, 428 F.3d 201, 205 (5th Cir. 2005).

In short, the Government has not carried its burden of proving

harmlessness.



                            III. CONCLUSION

     For the foregoing reasons, we VACATE Ramirez-Palomo’s sentence

and REMAND for resentencing in accordance with Booker and its

progeny.




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