                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0197p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 03-5175
          v.
                                                     ,
                                                      >
 JOEL BANUELOS ALVA,                                 -
                            Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                   for the Western District of Tennessee at Memphis.
                  No. 02-20079—Jon Phipps McCalla, District Judge.
                                          Submitted: April 5, 2005
                                    Decided and Filed: April 26, 2005*
             Before: KEITH and CLAY, Circuit Judges; OBERDORFER, District Judge.**
                                             _________________
                                                  COUNSEL
ON BRIEF: Bruce I. Griffey, Memphis, Tennessee, for Appellant. Lorraine Craig, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        OBERDORFER, District Judge. On July 20, 2004, this Court issued an opinion affirming
Defendant Joel Banuelos Alva’s conviction. United States v. Alva, 106 Fed. Appx. 314, 2004 WL
1661990 (6th Cir. 2004). On January 24, 2005, the U.S. Supreme Court granted Alva’s petition for
a writ of certiorari, vacated the judgment of this Court, and remanded to this Court for further
consideration in light of United States v. Booker, 125 S. Ct. 738 (2005). Alva v. United States, 125
S. Ct. 1041 (2005). For the reasons that follow, we reinstate our opinion of July 20, 2004, affirming
Alva’s conviction, but remand to the district court for resentencing in accordance with Booker.



        *
         This decision was originally issued as an “unpublished decision” filed on April 26, 2005. The court has now
designated the opinion as one recommended for full-text publication.
        **
          The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.


                                                         1
No. 03-5175           United States v. Alva                                                    Page 2


       The defendant, Joel Banuelos Alva, was convicted by a jury of one count of conspiracy to
possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846 and two
counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C.
§ 841(a)(1).
         At sentencing, the district court, applying the 2002 version of the United States Sentencing
Guidelines, determined that the defendant had an offense level of 36 and a criminal history category
of I, leading to a guideline range of 188 to 235 months imprisonment. In concluding that Alva’s
offense level was 36, the district court found that 16.9 kilograms of cocaine were attributable to Alva
and that a two-point enhancement for obstruction of justice applied. Absent those findings, Alva’s
offense level would have been 32 and his sentencing range 121 to151 months imprisonment.
        The district court sentenced Alva to 188 months imprisonment, the bottom of the applicable
guideline range. In imposing Alva’s sentence, the district court stated: “[t]his is one of those odd
cases where truly the range of 188 to 235 months seems extraordinary in light of the category I
status.” Supp. App. at 30. The court also stated: “certainly a sentence of 188 months is
extraordinary and far more than sufficient to deal with the particular crime involved in this case.”
Id. at 31.
        On appeal, Alva initially challenged only his conviction, which was affirmed in an opinion
filed on July 20, 2004. On August 30, 2004, however, Alva filed a petition for certiorari
challenging his sentence. Alva’s petition relied on the Supreme Court’s June 24, 2004 decision in
Blakely v. Washington, 125 S. Ct. 2531 (2004), which held that a defendant’s Sixth Amendment
rights are violated whenever a judge imposes a sentence that is not based solely on “facts reflected
in the jury verdict or admitted by the defendant.” Id. at 2537.
        On January 12, 2005, while Alva’s petition for certiorari was still pending, the Supreme
Court decided United States v. Booker, 125 S. Ct. 738 (2005), which extended Blakely’s Sixth
Amendment holding to the federal Sentencing Guidelines. Id. at 749. The Court stated that its
ruling was applicable to all cases on direct review at the time Booker was decided. Id. at 769. On
January 24, 2005, the Supreme Court granted Alva’s petition for certiorari, vacated the judgment
of this Court, and remanded Alva’s case to this Court for further consideration in light of Booker.

        On February 18, 2005, we ordered the parties to file supplemental briefs on the impact, if
any, of Booker on Alva’s sentence. Alva’s supplemental brief, filed on March 16, 2005, seeks a
remand to the district court for resentencing. He claims that Booker, as it has been interpreted and
applied by this Court, entitles him to such relief. The government agrees that “based upon Booker,
and the particular facts of the case at bar,” a remand for resentencing is warranted. We agree.
         Applying plain error review, this Court has decided that in cases where the defendant’s
sentence was imposed in violation of the Sixth Amendment, Booker requires a remand for
resentencing. See United States v. McDaniel, 398 F.3d 540, 547-50 (6th Cir. 2005); United States
v. Oliver, 97 F.3d 369, 377-81 (6th Cir. 2005). In addition, even absent a Sixth Amendment
violation, this Court has decided that a defendant sentenced under the mandatory Guidelines regime
is entitled to a remand for resentencing under the now-advisory Guidelines unless there is evidence
in the record to rebut the presumption of prejudice. See United States v. Barnett, 398 F.3d 516, 525-
27 (6th Cir. 2005).
        At sentencing, applying the then-mandatory federal Sentencing Guidelines, the district court
determined that Alva was responsible for 16.9 kilograms of cocaine, a fact neither reflected in the
jury verdict nor admitted by Alva. The district court also concluded that Alva had obstructed justice,
again a fact neither reflected in the jury verdict nor admitted by Alva. Under the then-mandatory
No. 03-5175           United States v. Alva                                                   Page 3


federal Guidelines, these judicially-determined facts increased Alva’s base offense level from 32
to 36 and increased his sentencing range from 121 to 151 months imprisonment to 188 to 235
months imprisonment. Accordingly, Alva’s sentence was imposed in violation of the Sixth
Amendment, requiring a remand for resentencing. Moreover, even absent the Sixth Amendment
violation, Alva would be entitled to a remand for resentencing because he was sentenced under the
mandatory regime, and there is no evidence in the record to rebut the applicable presumption of
prejudice. Indeed, even if prejudice were not presumed, the record in this case clearly establishes
that the district court was very troubled by the length of the sentence required under the mandatory
Guideline regime. Accordingly, the district court should have an opportunity to resentence Alva free
of mandatory Guidelines.
        For the reasons set out above, we reinstate the opinion filed on July 20, 2004, affirming the
judgment of conviction, VACATE the district court’s sentencing order, and REMAND the case to
the district court for resentencing.
       SO ORDERED.
