*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 20, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-30635c/w 04-31118

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO PABLO MORALES,

Defendant- Appellant.

 

Appeals from the United States District Court

for the Eastern District of Louisiana

(USDC No. 2:03-CR-364-4-N)

_________________________________________________________

Before REAVLEY, DAVIS and WIENER, Circuit Judges.

PER CURIAM:*

Morales appeals his conviction on a multi-count indictment for drug offenses and

the 192-month sentence imposed by the district court on the grounds that the court

unconstitutionally enhanced his sentence on the basis of facts neither pleaded to nor

proved in violation of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). For
2

the following reasons, we affirm the conviction but remand for the limited purpose of

consideration by the district court of whether it will impose a different sentence under the

now-advisory sentencing guidelines: 

1. Because the district court applied a sentence enhancement for a judgedetermined leadership role under a mandatory guidelines regime, Booker

error occurred. United States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005). 

2. Because Morales preserved the Booker error, we review the sentence

imposed by the district court for harmless error. Id. at 376. Under harmless

error Booker review, the Government bears the burden of demonstrating

that the error was harmless by demonstrating beyond a reasonable doubt

that the district court would not have sentenced Morales differently had it

acted under an advisory Guidelines regime. Id. at 377. 

3. While the 240-month statutory minimum for Morales’s crime exceeds the

upper limits of both the enhanced guideline range (168-210 months) and the

unenhanced guideline range (135-168 months), we cannot conclude that the

district court’s failure to apply the correct range was harmless. Under 18

U.S.C. § 3553(e), the district court was authorized to depart downwardly

from the statutory minimum and was moved to do so by the Government,

pursuant to U.S. SENTENCING GUIDELINES MANUAL § 5K1.1 The court

selected a sentence from the middle of the 168 to 210 month range (48

months below the statutory minimum), rather than the 168-month sentence
3

at the low end of that range that was recommended by the Government (72

months below the statutory minimum). Had the unenhanced range of 135

to 168 months been the benchmark, it is possible both that the Government

would have recommended the low end of that range and that the district

court, in compromise, might have selected a mid-range number between

135 and 168 months. 

4. We leave to the discretion of the district court whether to resentence on

remand. See Akpan, 407 F.3d at 377 n.62. We clarify that, post-Booker, a

sentencing judge remains entitled to find by a preponderance of the

evidence all facts relevant to the determination of a Guideline sentencing

range and all facts relevant to the determination of a non-Guidelines

sentence. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The

Booker error here lay in such judicial fact finding under a mandatory

guidelines scheme. Id. 

5. The Booker error in this case pertains only to the sentence imposed. 

Morales has raised no grounds on which his conviction may be overturned. 

AFFIRMED AND REMANDED.