                 Not For Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

           United States Court of Appeals
                         For the First Circuit


No.   04-2187

                       UNITED STATES OF AMERICA,

                                  Appellee,

                                       v.

                       JESÚS MANUEL DÍAZ CORREA,

                          Defendant, Appellant.


No.   04-2331

                       UNITED STATES OF AMERICA,

                                  Appellee,

                                       v.

                     JORGE D. LÓPEZ-ENCARNACIÓN,

                          Defendant, Appellant.


No.   04-2369

                       UNITED STATES OF AMERICA,

                                  Appellee,

                                       v.

                         JOSÉ M. MORALES-BORIA,

                          Defendant, Appellant.
No.   04-2420

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                       ZILKIA MARRERO-VARGAS,

                        Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO

         [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                               Before

                         Boudin, Chief Judge,
                Torruella and Howard, Circuit Judges.



     Juan J. Hernández López de Victoria on brief for appellant
Jesús M. Díaz Correa.
     Guillermo A. Macari-Grillo on brief for appellant Jorge López-
Encarnacion.
     Olga M. Shepard De Mari on brief for appellant José Morales-
Boria.
     Lydia Lizarribar-Masini on brief for appellant Zilkia Marrero-
Vargas.
      Germán A. Rieckehoff, Assistant U.S. Attorney, Nelson Pérez-
Sosa, Assistant U.S. Attorney, and H.S. Garcia, United States
Attorney, on brief for appellee.



                            June 28, 2006
            Per Curiam.   This is an appeal by four co-defendants--

Jesús Manuel Díaz Correa ("Díaz"), Jorge D. López-Encarnación

("López"), José M. Morales-Boria ("Morales"), and Zilkia Marrero-

Vargas ("Marrero")--from sentences imposed after they pled guilty

to conspiring to commit credit card fraud and other related

crimes.    All defendants seek resentencing under United States v.

Booker, 543 U.S. 220 (2005). In addition, defendants Morales and

López challenge their sentences on other grounds.                        For the

reasons    discussed   below,    we   vacate     all   of     the   defendants'

sentences and remand for resentencing under Booker.

A.     Booker Claims

            As the government correctly concedes, all defendants

preserved    their   Booker     arguments   by    arguing       below    that   the

Guidelines were unconstitutional under Blakely v. Washington, 542

U.S. 296 (2004). See United States v. Antonakopoulos, 399 F.3d 68,

74 (1st Cir. 2005).       Accordingly, we review              defendants' Booker

claims for harmless error.        United States v. Fornia-Castillo, 408

F.3d 52, 73 (1st Cir. 2005).          Under that standard, "to avoid a

remand for resentencing under advisory Guidelines, 'the government

has the burden of proving . . . that the error did not affect the

defendant[s'] substantial rights.           That is, we must be convinced

that   a   lower   sentence   would   not    have      been    imposed    had   the

Guidelines been advisory.'" Id. (quoting United States v. Vázquez-




                                      -2-
Rivera, 407 F.3d 476, 490 (1st Cir.), cert. denied, 126 S. Ct. 279

(2005)).

                  Here, for all but one defendant,1 Díaz, the government

does not even attempt to show that the district court would have

imposed the same sentence under the advisory Guidelines and other

statutory factors.            As to Díaz, the government argues that the

sentence was driven, not by the mandatory Guidelines, but by the

parties' stipulations in the plea agreement, which the court simply

adopted.          But those stipulations, entered into pre-Booker, dealt

only with the Guidelines calculations and therefore provide no

insight into what the district court would have done if the

Guidelines         were   not    mandatory      and   other    factors   were      also

considered.           Indeed, at sentencing, Díaz's counsel specifically

asked       the    district     judge   how    he   would   sentence   Díaz   if    the

Guidelines were declared unconstitutional, but the judge declined

to answer that hypothetical question.                 If anything, the fact that

the court adopted the parties' recommendation to sentence Díaz at

the bottom of the applicable Guidelines range is an indication that



        1
      We reject the government's argument that all defendants
except Díaz waived the benefit of the harmless error standard by
not expressly invoking it in their briefs. Nor did the defendants
waive their Booker claims by stipulating to certain Guidelines
calculations in their plea agreements, as the government further
contends. While such stipulations may be binding as to particular
Guidelines calculations, United States v. Serrano-Beauvaix, 400
F.3d 50, 54 (1st Cir.), cert. denied, 126 S. Ct. 106 (2005), they
do not preclude a defendant from seeking resentencing under a
scheme where the Guidelines calculations are not dispositive.

                                              -3-
the court might have imposed an even lower sentence if it had the

discretion to do so.    Vázquez-Rivera, 407 F.3d at 490.     Under those

circumstances, we are not convinced that the district court would

have imposed the same sentence absent the mandatory nature of the

Guidelines. Cf. United States v. Benedetti, 433 F.3d 111, 119 (1st

Cir. 2005) (finding Booker error harmless where the court stated

that it would apply "exactly the same sentence" if the Guidelines

were unconstitutional). Similarly, as to the remaining defendants,

nothing in the record indicates that the sentencing judge would

have imposed the same sentences if he were not bound by the

Guidelines.

            Accordingly, we conclude that the government has failed

to meet its burden of demonstrating harmless error and therefore

vacate and remand all defendants' sentences for resentencing under

Booker, using the protocols endorsed in United States v. Jiménez-

Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc).           "[O]ur

decision to remand should not be read as a 'suggestion or a

prediction    that   [defendants']   sentence[s]   will   necessarily   be

altered.'    This is especially true 'where . . . the harmless error

test[] makes even a modest possibility of change enough to warrant

remand.'"     United States v. Gómez-Rosario, 418 F.3d 90, 109 (1st

Cir. 2005) (citations omitted).




                                     -4-
B.   Other Claims

           Because Morales will be resentenced under Booker, his

procedural challenges to his sentencing proceedings--that the court

refused   to   consider   his    illegible    written     objections     to   the

presentence report and refused to grant his motion to continue the

sentencing hearing--are moot and therefore need not be considered.

However, to guide the district court in resentencing Morales and

Lopez, we will address their substantive challenges to their

Guideline calculations.         United States v. Green, 426 F.3d 64, 66

(1st Cir. 2005).

           Morales's      substantive       challenge      focuses      on    the

calculation    of   the   amount     of    loss    and    number   of   victims

attributable to him for sentencing purposes.              He claims that the

district court erred in basing his sentence on the total amount of

loss (more than $400,000) and total number of victims (between 10

and 50) attributable to the entire conspiracy, rather than on the

smaller quantities involved in the overt acts with which he was

charged or otherwise evidenced by materials provided in discovery.

           The district court correctly rejected that argument and

held Morales to the Guidelines calculations that he stipulated to

in his plea agreement, which were expressly based on the $400,000

loss amount and the 10-to-50 victims.             As we   recently reiterated

in a decision involving another co-defendant in this same case,

"[o]rdinarily, a defendant can be held to such stipulations."


                                     -5-
United States v. Rodríguez-González, 433 F.3d 165, 167 (1st Cir.

2005) (citing United States v. Teeter, 257 F.3d 14, 28 (1st Cir.

2001)).     In this case, unlike in Rodríguez-González, there is no

claim   that    the    defendant   joined      the   conspiracy    late,   so   the

principle      that   a   late-joining    member     of   a   conspiracy   is   not

responsible, for sentencing purposes, for conduct of his co-

conspirators before he joined, id. at 168, has no bearing here.

Nor does the record here evidence any confusion on the judge's part

as to the applicable standard.           Cf. id. at 168-69.

            López argues that, in determining his criminal history

category, the district court erred in counting one of his prior

convictions.          In reviewing this claim of Guidelines error, the

pre-Booker standards of review still apply; the district court's

interpretation of the Guidelines is reviewed de novo and its

related factual findings are reviewed for clear error.                     United

States v. Robinson, 433 F.3d 31, 35, 38 (1st Cir. 2005).

            Specifically, López claims that his March 2003 state

conviction for attempting to cash a false check should not have

been counted in computing his criminal history score because that

conviction was "part of the instant offense," within the meaning of

U.S.S.G. § 4A.1.2.          The district court rejected that argument,

reasoning that the prior conviction for check fraud was for a

different offense, more akin to bank fraud, than the instant

conviction for credit card fraud.


                                         -6-
          In so concluding, the district court does not appear to

have considered several other factors relevant to whether the prior

offense was "part of" the instant one, including whether the

offenses are "'substantially connected to each other by at least

one common factor, such as common victims, common accomplices,

common purpose, or similar modus operandi.'"      United States v.

Collazo-Aponte, 216 F.3d 163, 203 (1st Cir. 2000) (quoting U.S.S.G.

§ 1B1.3 comment. (n.9(A)2)), vacated on other grounds, 532 U.S.

1036 (2001).      While "[t]he nature of the offenses may also be a

relevant consideration," U.S.S.G. § 1B1.3 comment. (n.9(B)), it is

not dispositive, id.    The district court cannot therefore rely on

that single factor without considering the other factors.    Because

determining whether a prior offense is part of the instant offense

is "necessarily a fact-specific inquiry," id. (quotation marks and

citation omitted); see also Troncoso, 23 F.3d at 616, we leave that

determination to the district court in the first instance.

               All of the appellants' sentences are vacated and the

matter is remanded to the district court for resentencing in

accordance with this opinion.

          It is so ordered.


     2
      This application note--rather than application note 3, which
describes the circumstances under which prior sentences are
"related" to each other--is the one that applies here. See United
States v. Cyr, 337 F.3d 96, 99 n.1 (1st Cir. 2003); United States
v. Troncoso, 23 F.3d 612, 616 n.4 (1st Cir. 1994).              The
government's reliance on application note 3 is therefore misplaced.


                                 -7-
