* Pursuant to 5 T H C IR

. R. 47.5, the court has determin ed t hat this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 2, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 04-41648

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANCISCO R. DOMINGUEZ,

Defendant - Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

USDC No. 4:04-CR-71-9

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM: *

Franci sco R. Dominguez appeals his sentence following his guilty-plea conviction for

conspiracy to manufacture, distribute, or possess with intent to manufacture, distribute, or dispense-2-

a controlled substance in violation of 21 U.S.C. §§ 841 and 846.

Dominguez contends that his sentence violates United States v. Booker

, 125 S. Ct. 738 (2005)

because the district court increased his offense level based on the purity of the controlled substance

and the attribution of additional drug amounts to him. He argues that these facts were not found by

a jury or admit t ed by him. Do minguez objected in the district court and cited to B lakely v.

Washington , 542 U.S. 296 (2004).

Where, as here, a defendant has preserved a Booker challenge in the district court, we “will

ordinarily vacate the sentence and remand,” unless the error was harmless. U nited States v. Pineiro

,

410 F.3d 282, 284 (5th Cir. 2005). The Government bears the burden of demonstrating that the error

was harmless beyond a reasonable doubt by showing “that the district court would have imposed the

same sentence absent the error.” I d

. Although the district court imposed alternative sentences based

on possible Supreme Court changes to the Sentencing Guidelines, it is unclear whether the district

court contemplated the actual result reached by the Supreme Court in Booker

. Accordingly, the

Government cannot show that the district court’s error was harmless.

Dominguez also contends t hat the district court erred by not adjusting his sentence for the

period of imprisonment served pursuant to a state conviction for the same conduct at issu e in his

federal prose cut io n. He argues that he must be given credit for this period pursuant to U.S.S.G.

§ 5G1.3(b), which “operates to mitigate the possibility that the fortuity of two separate prosecutions

will grossly increase a defendant’s sentence.” W itte v. United States

, 515 U.S. 389, 405 (1995). On

appeal, the Government does not dispute that U.S.S.G. § 5G1.3(b) applies and acknowledges that

the district court failed to formally adjust his sentence according to its terms. Instead, it argues that

any error was harmless because the district court accounted for time served in its judgment.-3-

Where U.S.S.G. § 5G1.3(b) applies, a district court “shall adjust the sentence for any period

of imprisonment already served on the undischarged term of imprisonment

. . . .” U.S. S ENTENCING

G UIDELINES M ANUAL § 5G1.3(b) (2004); see United States v. Rangel , 319 F.3d 710, 714 (5th Cir.

2003) (describing the provision as “mandatory”). The district court’s judgment merely recommends

that Dominguez receive credit for time served on his state conviction without considering what, if

any, credit the Bureau of Prisons is permitted to award. Because the authority of the Bureau of

Prisons to award sentence credit is not identical to the authority of the district court to make

sentencing adjustments, the Government’s general assertion that “the record does not indicate that

the Bureau of Prisons would not follow the court’s order” is insufficient to establish harmless error.

See United States v. Dorsey , 166 F.3d 558, 559 (3d Cir. 1999) (vacating and remanding where the

district court left the entire credit determination to the Bureau of Prisons).

Dominguez’s sentence is VACATED, and this matter is REMANDED for resentencing not

inconsistent with this opinion.

SENTENCE VACATED; REMANDED FOR RESENTENCING.