* 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this opinion should not be published and is not precedent except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

May 30, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20676

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EULALIO MORENO,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:03-CR-235-1

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

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Eulalio Moreno appeals the sentence imposed following his

guilty plea conviction of possession of counterfeit United States

currency (count 1) and possession of a firearm by a felon

convicted of three or more previous violent felonies (count 2). 

Moreno was sentenced to concurrent 235-month terms of

imprisonment and to a three-year period of supervised release for

Count 1 and to a concurrent five-year period of supervised
No. 04-20676

- 2 -

release for Count 2. The district court also ordered Moreno to

pay concurrent $3,000 fines. 

Moreno contends that the district court committed both types

of error addressed in United States v. Booker, 543 U.S. 220

(2005). Specifically, Moreno complains of a Sixth Amendment

violation because the district court determined facts in imposing

Chapter 4 enhancements and that the district court committed a

so-called Fanfan violation in sentencing him pursuant to the

then-mandatory Sentencing Guidelines. 

Because Moreno preserved error in the district court by

asserting an objection based upon Blakely v. Washington, 542 U.S.

296 (2004), we review these issues for harmless error. See

United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).

The district court erred in sentencing Moreno pursuant to

the mandatory Sentencing Guidelines. See United States v. Woods,

440 F.3d 255, 257 (5th Cir. 2006); see also United States v.

Garza-Lopez, 410 F.3d 268, 275 n.2 (5th Cir.) (when vacating a

sentence due to a misapplication of the then-mandatory

guidelines, it is not necessary to address a Sixth Amendment

claim), cert. denied, 126 S. Ct. 298 (2005). Because the error

was preserved, the Government bears the “heavy burden” of showing

that the error is harmless. See Woods, 440 F.3d at 257–59. A

sentence at the top of the guideline range is not sufficient,

without more, to show that Booker error was harmless. See id. at

258. Nor is the fact that the district court narrowly refused an
No. 04-20676

- 3 -

upward departure from the guideline range. See id. at 260–61. 

The district court’s stated reasons do not reveal whether the

district court would have imposed the same sentence under an

advisory guidelines regime. See id. at 261. Because the

Government cannot carry its burden of showing harmless error, the

sentence must be vacated and the case remanded for resentencing. 

See id. at 261–62. We do not reach Moreno’s contention that the

district court erred in determining that he is an “armed career

criminal.” See United States v. Akpan, 407 F.3d 360, 377 n.62

(5th Cir. 2005). 

VACATED AND REMANDED for Resentencing.