* 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opinion should not be published and is not precedent except under the limited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.

1 543 U.S. 220 (2005).

United States Court of Appeals

Fifth Circuit

FILED

April 19, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41675

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRED NIMOY CEASAR,

Defendant-Appellee.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:03-CR-45-ALL

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

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Ceasar appeals from his sentence following his guilty-plea,

arguing, inter alia, that the district court erred under Booker.

1

The Government, while acknowledging error, argues that Ceasar

waived it, precluding review, or forfeited it, subjecting it to
No. 04-41675

-2-

2 United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (holding

that unpreserved errors are subject to plain error review).

3 United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005) (holding

that preserved errors are subject to harmless error review).

4 United States v. Newell, 315 F.3d 510, 519 (5th Cir. 2002); see United

States v. Musquiz, 45 F.3d 927, 931-32 (5th Cir. 1995) (finding waiver where

counsel told the court, “we will withdraw the challenge”).

5 Pineiro, 410 F.3d at 285-86 (holding that a Blakely objection

preserves a Booker claim).

plain error review,2 which he has failed to show. And it argues

that even if he preserved the error, it was harmless.3

“Waivers of constitutional rights not only must be voluntary

but must be knowing, intelligent acts done with sufficient

awareness of the relevant circumstances and likely consequences;

in other words, such a waiver must constitute an intentional

relinquishment or abandonment of a known right or privilege.”4

Ceasar did not waive the error. His first counsel raised a

Blakely objection to the PSR and then withdrew. Although his

second counsel did not mention Blakely in his objections to the

amended response, neither Ceasar nor his second counsel withdrew

the initial objection. That Ceasar did not “renew” his challenge

at sentencing is irrelevant, for he had an outstanding objection. 

Given the change of counsel in the middle of the case and that

the district court never told Ceasar he was waiving his

objection, we cannot say Ceasar knowingly waived his

Blakely/Booker5 challenge.

Moreover, we cannot say that Ceasar forfeited the challenge. 

A forfeited error is one the defendant fails to make. Once
No. 04-41675

-3-

6 Id.

7 See United States v. Aguirre, 155 F. App’x 145 (5 Cir. 2005).

8 See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

Ceasar objected under Blakely, the issue was on the table and

could only be preserved for appeal or waived.

Consequently, we review for harmless error, reversing

unless the Government can prove beyond a reasonable doubt that

the district court would have imposed the same sentence under an

advisory Guidelines regime.6 The Government points only to the

fact that the district court sentenced Ceasar in the middle of

the Guidelines range. In a recent unpublished opinion, we held

that insufficient to show harmlessness.7 As a result, we VACATE

Ceasar’s sentence and REMAND for resentencing.

Because we vacate Ceasar’s sentence and remand for

resentencing, we do not address Ceasar’s other claims that the

district court misapplied the Guidelines.8