* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under the limited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 5 TH C IR . R. 47.5.4.

1 To preserve the issue for possible S upreme Court review, CortesGarcia also challenges the constitutionality of § 1326, but he correctly concedes

that this argument is foreclosed. See Almendarez-Torres v. United States , 523

U.S. 224, 235 (1998); United States v. Alfraro , 408 F.3d 204, 210-11 (5th Cir.

2005), cert. denied , (Oct. 3, 2005)(No. 05-5604). United States Court of Appeals

Fifth Circuit



## FILED

November 14, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 05-40047

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACINTO CORTES-GARCIA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Criminal No. 7:04-CR-138

Before JONES, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM: *

Jacinto Cortes-Garcia pleaded guilty to being unlawfully

present in the United Sta tes after having been deported, a

viol ation of 8 U.S.C. § 1326. He appeals his 57-month sentence

pursuant to United States v. Booker

, 125 S. Ct. 738 (2005). 1

Because Cortes-Garcia preserved his claim of error an d the

Government cannot demonstrate the error is harmless , we V ACATE2

Cortes-Carcia’s sentence and REMAND to the district court for re-sentencing.

BACKGROUND

On April 5, 2004, Cortes-Garcia pleaded guilty to a

violation of 8 U.S.C. § 1326. A pre-sentence report (“PSR”)

calculated Co rtes-Garcia’s total offense level at 22, which

included a sixteen-level enhancement for his prior conviction of a

crime of violence and a two-level reduction for acceptance of

responsibility. Cortes-Garcia objected to the PSR on the basis of

Blakely v. Washington

, 124 S. Ct. 2531 (2004). The district court

overruled this objection. At sentencing, the court granted the

Gov e rnment’s motion for an additional one-level reduction for

acceptance of responsibility, bringing the total offense level to

21, and sentenced Cortes-Garcia to fifty-seven months imprisonment.

DISCUSSION

Because the district court sentenced Cortes-Garcia under

a mandatory Guidelines r egime, it committed F anfan error.

See United States v. Valenzuela-Q uevado , 407 F.3d 728, 733

(5th Cir. 2005); see also United States v. Walters , 418 F.3d 461,

463 (5th Cir. 2005)(discussi ng the difference between Sixth

Amendment Booker error and Fanfan error). The Government concedes

that Cortes-Garcia’s objection on the basis of Blakely v.

Washington

, 124 S. Ct. 2531 (2004), was sufficient to preserve his

Fanfan claim.3 This court reviews preserved Fanfan claims for harmless

error. S ee United States v. Mares

, 402 F.3d 511, 520 n.9 (5th Cir.

2005) (“[I]f either the Sixth Amendment issue presented in Booker

or the issue presented in Fanfan is preserved in the district court

by an objection, we will ordinarily vacate and remand, unless we

can say the error is harmless under Rule 52(a) of the Federal Rules

of Criminal Procedure.”). Thus, “the only question is whether the

government has met its burden to show harmless error beyond a

reasonable doubt in the imposition of [the defendant’s] sentence.”

Walters , 418 F.3d at 464.

Und er harmless error, an error that does not affect a

defendant’s “substantial rights” is disregarded. F E D

. R. C RIM

. P.

52(a). Thus, the Government must prove beyond a reasonable doubt

that the outcome of the district court proceedings was not affected

by the imposition of the mandatory Guidelines. In the instant

case, the Government argues that no prejudice resulted to the

defendant because he received the benefit of the Guidelines

— a

three-level reduction for acceptance of responsibility. We are not

persuaded by the Government’s argument, particularl y in light of

the district court’s lack of clear commentary regarding the

sentence and its decision to sentence at the bottom of the

applicable Guideline range.

CONCLUSION4 Accordingly, we VACATE Cortes-Garcia’s sentence and

REMAND for resentencing.