* 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should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

United States Court of Appeals

Fifth Circuit

FILED

December 21, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10741

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ABELARDO GONZALES,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

No. 4:04-CR-11-ALL

--------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Abelardo Gonzales appeals the 120-month sentence imposed after

his guilty-plea conviction of being a felon in possession of a

firearm. The district court upwardly departed to 120 months’

imprisonment from Gonzales’s guideline range of 70 to 87 months

based on its finding that the top of the guideline range under-
No. 04-10741

-2-

represented the seriousness of Gonzales’s criminal history or the

likelihood he would commit further crimes. Gonzales argues that

the district court reversibly erred (1) by upwardly departing after

considering his (a) arrests that did not result in convictions,

(b) remote convictions, and (c) convictions that were used to determine his criminal history category; (2) by failing to comply

with U.S.S.G. § 4A1.3(a)(4) when it determined the extent of the

departure; and (3) in deciding to depart based on facts not admitted by Gonzales or found by a jury. 

After United States v. Booker, 543 U.S. 220 (2005), we continue to review the interpretation and application of guidelines de

novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005)

(per curiam). The district court’s decision to depart upward and

the extent of the departure are reviewed for abuse of discretion.

United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005), cert.

denied, 2005 U.S. LEXIS 9136 (U.S. Dec. 5, 2005). 

“If reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of a defendant’s criminal history or the likelihood that the

defendant may commit other crimes, an upward departure may be warranted.” U.S.S.G. § 4A1.3(a)(1). “However, a prior arrest record

itself shall not be considered under [§ 4A1.3].” § 4A1.3; see

United States v. Cantu-Dominguez, 898 F.2d 968, 971 (5th Cir.

1990). A sentencing court incorrectly applies the guidelines where

it bases a departure on an impermissible factor such as the defen-
No. 04-10741

-3-

dant’s prior arrest record. Williams v. United States, 503 U.S.

193, 199-200 (1992). The government has the burden of showing on

appeal “that the district court would have imposed the same sentence absent the erroneous factor.” Id. at 203.

The government has not argued and has thus failed to show

that, absent consideration of Gonzales’s arrests that did not result in convictions, the court would have imposed the same sentence. Accordingly, we VACATE the sentence and REMAND for resentencing. Consequently, we do not address Gonzales’s remaining

claims of Booker error or error under the guidelines. See United

States v. Southerland, 405 F.3d 263, 270 (5th Cir. 2005). 

VACATED AND REMANDED.