US v. Barrera-Renteria

Filing 920060718

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-4088

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SAUL BARRERA-RENTERIA, Defendant - Appellant.

Appeal from the United States District District of North Carolina, at Durham. District Judge. (CR-04-310)

Court for the Middle James A. Beaty, Jr.,

Submitted:

June 21, 2006

Decided:

July 18, 2006

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

David B. Freedman, WHITE AND CRUMPLER, Winston-Salem, North Carolina, for Appellant. Angela Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM: Saul Barrera-Renteria appeals his eighty-four month

prison sentence imposed following his guilty plea to illegal reentry after having been convicted of a felony and being deported, in violation of 8 U.S.C. §§ 1326 (a), (b)(2) (2000). appeal his conviction. He does not

We vacate his sentence and remand for

resentencing in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). In Booker, the Supreme Court concluded the mandatory manner in which the federal sentencing guidelines required courts to impose sentencing enhancements based on facts found by the judge by a preponderance of the evidence violated the Sixth Amendment. Booker, 125 S. Ct. at 746, 750. The Court remedied the

constitutional violation by severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing courts to impose a sentence within the applicable guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (appellate standards of review for guideline issues), thereby making the guidelines advisory. Booker, 125 S. Ct. at 756-57.

Barrera-Renteria contends that the two criminal history points assessed for committing the instant offense while on parole were based upon facts found by the judge, and not admitted to, in violation of his Sixth Amendment rights. Because Barrera-Renteria

preserved this issue by objecting to the presentence report ("PSR")

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based upon Blakely v. Washington, 542 U.S. 296 (2004), we review for harmless error. error, this court When a defendant preserves a Sixth Amendment "must reverse unless [it] find[s] this

constitutional error harmless beyond a reasonable doubt, with the Government bearing the burden of proving harmlessness." See United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003). In this

case, any presumed error is harmless because even removing the two criminal history points, Barrera-Renteria still has ten criminal history points, and would remain in Criminal History Category V, which applies to defendants with ten to twelve criminal history points. United States v. White, 405 F.3d 208, 223 (4th Cir. 2005).

No reversible Sixth Amendment error occurred. Barrera-Renteria also asserts that the district court's mandatory application of the Guidelines constitutes reversible error. Because Barrera-Renteria raised a timely Blakely objection

at sentencing, he has preserved his claim of statutory Booker error. 2006). United States v. Rodriguez, 433 F.3d 411, 415 (4th Cir. Thus, we review Barrera-Renteria's claim for harmless

error, which places "the burden . . . on the Government to show that such an error did not affect the defendant's substantial rights." Id. at 416. The Government concedes that it cannot show

the error was harmless and cannot satisfy its burden of showing the error did not affect Barrera-Renteria's substantial rights. There

is no indication from the record how the district court would

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sentence Barrera-Renteria under the current advisory guidelines system. Therefore, Barrera-Renteria must be resentenced.* Although the Sentencing Guidelines are no longer

mandatory, Booker makes clear that a sentencing court must still "consult [the] Guidelines and take them into account when

sentencing."

125 S. Ct. at 767.

On remand, the district court

should first determine the appropriate sentencing range under the Guidelines, making all the factual findings appropriate for that determination. consider described sentence. this in See Hughes, 401 F.3d at 546. sentencing 18 U.S.C. § range along with The court should the and other then factors impose a

3553(a)

(2000),

Id.

If that sentence falls outside the Guidelines

range, the court should explain its reasons for the departure as required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must

be "within the statutorily prescribed range and . . . reasonable." Id. at 546-47. Accordingly, we vacate Barrera-Renteria's sentence and remand for resentencing in light of Booker. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED Just as we noted in United States v. Hughes, 401 F.3d 540, 545 n.4 (4th Cir. 2005), "[w]e of course offer no criticism of the district judge, who followed the law and procedure in effect at the time" of Barrera-Renteria's sentencing. - 4 *