                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
            IN THE UNITED STATES COURT OF APPEALS
                                                  September 7, 2006
                    FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                          No. 04-11057




                  UNITED STATES OF AMERICA,

                      Plaintiff-Appellee,

                             versus

                     BENJAMIN DURAN-RUIZ,

                     Defendant-Appellant.

                     --------------------
         Appeal from the United States District Court
              for the Northern District of Texas
                   USDC No. 4:04-CR-00035-1
                     --------------------

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit
Judges.

PER CURIUM:*

     Defendant-appellant Benjamin Duran-Ruiz appeals his

sentence of 135 months of incarceration, a five year term

of supervised release, and a $100.00 special assessment.



     *
       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this opinion should not be published and is not precedent except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.

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                            No.04-11057
                                 -2-

Pursuant to a plea agreement, Duran-Ruiz pleaded guilty

to count two of his indictment, possession of more than

one kilogram of heroin with intent to distribute.

    His presentence report (PSR) reflected post-arrest

statements made by defendant to DEA agents and task force

officers, as well as information given to the DEA by a

confidential source.       None of these facts were alleged in

the indictment, stipulated to in the factual resume, or

admitted in his guilty plea.             The PSR recommended his

base offense level be set at 38 under the United States

Sentencing Guidelines (USSG).             It further recommended

that this base offense level be reduced because (1)

defendant met certain statutory criteria under the USSG;

and (2) defendant accepted responsibility.                   After these

adjustments,    his   total    offense     level       was    33,   which

carried a sentence range of 135-168 months.                    The court

sentenced defendant to 135 months of imprisonment, five

years   of    supervised      release,     and     a    $100     special

assessment.

    The   district    court     then     imposed       an    alternative

sentence “...made necessary by the possibility that the

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federal sentencing guidelines may hereafter be declared

unconstitutional    or   otherwise      inoperative   and,   as    a

consequence, the primary judgment in this case reversed

on appeal or vacated and set aside pursuant to Title 28,

United States Code § 2255.”          The judge provided that

“[t]he sentence is imposed pursuant to Title 18, United

States Code § 3553(a), taking the guidelines issued by

the United States Sentencing Commission pursuant to Title

28, United States Code § 994(a), as advisory only.”           This

alternative    sentence     provided      for   ten   years       of

imprisonment, five years of supervised release, and a

special assessment of $100.

     Defendant-appellant appeals on the following bases:

          (1) his sentence violates Blakely v. Washington,

          542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S.

          220 (2005), in that it, in part, hinged on

          evidence in the PSR that was not admitted by

          defendant in his guilty plea nor decided by a

          jury beyond a reasonable doubt;1 and


     1
        Defendant-appellant does not, in his appeal, address the
existence of the alternative sentence.

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                        No.04-11057
                             -4-

        (2) his sentence violates the Sixth Amendment’s

        Confrontation Clause, as interpreted by Crawford

        v. Washington, 541 U.S. 36 (2004), in that it

        was based on the testimonial hearsay of DEA

        agents and a confidential source contained in

        his PSR.

    As to the first basis of appeal, the Government

concedes that Blakely and Booker are applicable to the

instant case and also that the error incurred was not

harmless.   Therefore, the issue for this Court is whether

the sentence should be vacated and remanded or instead

whether the alternative sentence should be imposed.

    As to the second basis, defendant’s argument is

foreclosed by United States v. Navarro, 169 F.3d 228, 236

(5th Cir. 1999), which held that “the constitutional

right to confront witnesses does not apply to non-capital

sentencing proceedings.” Accordingly, we consider only

his first basis.

                         Analysis




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                                 No.04-11057
                                      -5-

       The limited, yet recent, case law from this Circuit

dictates that we vacate Duran-Ruiz’s sentence and remand

for resentencing.

       In United State v. Adair, 436 F.3d 520 (5th Cir.

2006), the court sentenced the defendant under the then-

mandatory       sentencing          guidelines          to     240      months

imprisonment.         The court levied an alternative sentence

of fifty-one months “should the sentencing guidelines

later     be    found      to    be        unconstitutional        in     their

entirety....”             This   Court       vacated     the      defendant’s

sentence       and    remanded        to     the   district       court      for

resentencing         in   accordance        with   Booker    based      on   the

similar case of United States v. Walters, 418 F.3d 461

(5th Cir. 2005).           In both Adair and Walters, this Court

found that the condition for the alternative sentence,

that      the        sentencing            guidelines        be      declared

unconstitutional in their entirety, did not occur.                           As

explained in those cases, Booker did not declare the

guidelines unconstitutional in toto but instead merely

rendered them advisory.               Adair 436 F.3d at 528.              These

cases suggest that if the alternative sentence lacked the

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                             No.04-11057
                                  -6-

condition         that      the    guidelines         be     declared

unconstitutional in their entirety, then the alternative

sentence could be imposed, assuming any other conditions

are met.

    However, United States v. Story, 439 F.3d 226 (5th

Cir. 2006), dispels the implications of both Walters and

Adair. In Story, the judge orally imposed two alternative

sentences.    The first is the only one applicable.            In the

relevant    alternative      sentence,     the    court    imposed   an

identical incarceration time as that provided in the

Guideline-governed sentence, in the event the Guidelines

“are declared to be unconstitutional.”               Story, 439 F.3d

at 229.      The judge did not mention the scope of the

declaration of unconstitutionality of the Guidelines,

i.e., it did not predicate the alternative sentence on a

declaration of unconstitutionality of the Guidelines in

their entirety, as did the judge in Adair and Walters.

    In Story, the government argued that the case should

not be remanded for resentencing because the defendant’s

sentence    fit    within    the   first    alternative      sentence

pronounced by the district court.                Stated differently,

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                                No.04-11057
                                     -7-

the government argued the condition was met because, it

alleged, Booker declared the Guidelines, to some extent,

unconstitutional.           This court disagreed.           Referencing

Adair, we stated, “[i]n a recent case2 in which a district

judge imposed similarly worded alternative sentences, we

found     that     the     trigger   for      the   first   alternative

sentence, the Guidelines being declared unconstitutional

in their entirety, did not occur.               Likewise, this trigger

did   not    occur    to    activate     Story’s    first   alternative

sentence.”       Id. at 233.         (Internal citation omitted).

Although     the     district    judge     in   Story   predicated   the

alternative sentence on the Guidelines being declared

unconstitutional and did not mention the scope of the

unconstitutionality,          the Court still found the trigger

of the alternative sentence not met.

                                Conclusion

      Because of this court’s clarification of Adair in the

Story case, it is evident that the position of the Fifth

Circuit is that alternative sentences predicated on a

declaration of the unconstitutionality of the Sentencing

      2
          The court here is referring to Adair.

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                        No.04-11057
                             -8-

Guidelines should not be imposed.          Therefore, we vacate

the   defendant’s   sentence       and   remand   the   case   for

resentencing.




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