1 124 S. Ct. 2531 (2004).

2 377 F.3d 464, 465-66 (5th Cir. 2004).

3 125 S. Ct. 738 (2005). United States Court of Appeals

Fifth Circuit



# FILED

February 14, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41499

United States of America

Plaintiff-Appellee,

versus

Jorge Mendoza-Blanco,

also known as Angelo Rodriguez-Carabel

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:

Jorge Mendoza-Blanco pleaded guilty to attempted illegal

reentry following deportation in violation of 8 U.S.C. § 1326. The

presentence report (“PSR”) recommend an offense level of 24, which

included a 16-level increase for a prior conviction. MendozaBlanco objected to the PSR on the basis of Blakely v. Washington

, 1



### which the district court denied in light of our decision in United

States v. Pineiro

. 2 

### Mendoza-Blanco now appeals his 100-month

senten ce pursuant to U nited States v. Booker

. 3 

### Because Mendoza-4 See United States v. Valenzuela-Quevado

, 407 F.3d 728, 733 (5th Cir.

2005).

5 See 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.”).

6 See Valenzuela-Quevado

, 407 F.3d at 732-34 (discussing the difference

between Sixth Amendment Booker error and nonconstitutional Fanfan error).

7 United States v. Walters

, 418 F.3d 461, 464 (5th Cir. 2005). Although we

must follow the panel’s decision in Walters

, United States v. Ruiz

, 180 F.3d 675,

676 (5th Cir. 1999), we note that the standard of review it applied––requiring

the Government to show tha t preserved Fanfan error was harmless beyond a

reasonable doubt––was not contes ted in the case and appears to be incorrect

because Fanfan error is nonconstitutional error. See United States v. Hughes

,

410 F.3d 540, 553 (4th Cir. 2005) (pointing out that Fanfan error, unlike Booker

error, is nonconstitutional). Rather, “harmless error” in F anfan cases is

defined by the standard announced in Kotteakos v. United States , 328 U.S. 750,

776 (1946). S ee United States v. Hernandez-Guevara

, 162 F.3d 863, 876 (5th Cir.

1998) (applying Kotteakos ’s “substantial and injurious effect ” standard to

preserved nonconstitutional error). But the issue is irrelevant here because the

Government cannot meet either burden.



### 2 Blanco preserved his claim of error and the government cannot show

t he error is harmless, we VACATE Mendoza-Blanco’s sentence and

REMAND to the district court for resentencing.

Because the d istrict court sentenced Mendoza-Blanco under a

mandatory Guidelines regime, it committed F anfan error. 4 

### The

government concedes that Mendoza-Blanco’s objection on the basis of

Blakely was sufficient to preserve his Fanfan claim. Our review of

preserved Fanfan claims is for harmless error. 5 

### Because F anfan

error is a nonconstitutional error, 6 

### the government must show that

the error was harmless beyond a reasonable doubt. 78 F ED

. R. C RIM

. P. 52(a).

9 Cf. United States v. Rodriguez-Gutierrez

, 428 F.3d 201, 205-06 (5th Cir.

2005).

10 Mendoza presents two additional arguments on appeal. First, to preserve

the issue for Supreme Court review, Mendoza challenges the constitutionality of

§ 1326, but he correctly concedes that this argument is foreclosed. S ee

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). Second, Mendoza argues that the government breached an oral plea

agreement by failing to recommend a three-level sentence reduction for MendozaBlanco’s acceptance of responsibility under U.S.S.G. § 3E1.1. Since we vacate

and remand because of the sentencing judge’s Fanfan error, we need not address

this issue.



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

defendant’s “substantial rights” is disregarded. 8 

### Thus, the

government must prove that the outcome of the district court

proceedings was not affected by the imposition of the mandatory

Guidelines. Here, the government argues that no prejudice resulted

to the defendant because the sentencing judge gave no indication

that it wanted to impose a lesser sentence. We are not persuaded,

particularly in light of the sentencing judge’s decision to impose

the minimum sentence under the Guidelines. 9



### Accordingly, we VACATE Mendoza-Blanco’s sentence and REMAND

for resentencing. 10