                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0113n.06
                           Filed: February 14, 2006

                                           No. 04-6359

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
MIGUEL ANGEL RENTERIA-GARCIA,                     )   WESTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )




Before: NELSON, DAUGHTREY, and ROGERS, Circuit Judges.
       ROGERS, Circuit Judge. The court remands for resentencing in light of United States v.

Booker, 543 U.S. 220 (2005), because the district court sentenced Renteria-Garcia under the

erroneous assumption that the federal sentencing guidelines were mandatory.


                                                 I.


       Renteria-Garcia pled guilty to illegal re-entry into the United States in violation of 8 U.S.C.

§ 1326(a) and (b)(2). Renteria-Garcia is a native and citizen of Mexico who was deported in 1998

after pleading guilty to second degree robbery. He illegally returned to the United States and was

arrested on March 28, 2003, after being involved in a minor traffic accident.
No. 04-6359
United States v. Renteria-Garcia

       After pleading guilty, Renteria-Garcia was sentenced to 41 months’ imprisonment. This was

the low end of the applicable guideline range after an offense level reduction for acceptance of

responsibility. The district court did not articulate an alternative sentence if the guidelines were

found advisory.


                                                 II.


       Because Renteria-Garcia did not object to being sentenced under the guidelines, this court

reviews for plain error. United States v. Barnett, 398 F.3d 516, 527 (6th Cir. 2005). In reviewing

for plain error, we consider whether (1) there was an error, (2) which was plain, (3) that affected the

defendant’s substantial rights, and (4) that, in this court’s discretionary view, seriously affects the

fundamental fairness, integrity, or public reputation of judicial proceedings. See Johnson v. United

States, 520 U.S. 461, 466-67 (1997).


                                                 III.


       A sentencing court’s failure to treat the guidelines as advisory constitutes plain error as a

matter of law. Barnett, 398 F.3d at 527. In the present case, it is undisputed that the district court

committed plain error because it sentenced Renteria-Garcia under the now-erroneous assumption

that the Guidelines are mandatory. The only issues in this case concern the prejudice and fairness

prongs. The government has not rebutted the presumption of prejudice, and the district court offered

no alternative sentence if the guidelines were found advisory. See Barnett, 398 F.3d at 529 (stating

that presumption of prejudice was appropriate in the Booker context); see also United States v.

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No. 04-6359
United States v. Renteria-Garcia

Trammel, 404 F.3d 397, 402 (6th Cir. 2005) (stating that being sentenced to the lowest possible

sentence under the guidelines heightens the risk of prejudice). Booker violations affect fundamental

fairness. Barnett, 398 F.3d at 529-30 (stating a sentence imposed under the pre-Booker regime

satisfies this requirement). Renteria-Garcia is, therefore, entitled to resentencing.


       We therefore remand for resentencing in light of Booker’s remedial holding that the

sentencing guidelines are advisory.




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