United States v. Alexander Milien-Fong

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT July 29, 2005 No. 04-16605 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D.C. Docket No. 04-20538-CR-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEXANDER MILIEN-FONG,

Defendant-Appellant.

__________________________

Appeal from the United States District Court for the Southern District of Florida _________________________

(July 29, 2005)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM: Alexander Milien-Fong appeals his 37-month concurrent sentences for

conspiracy and possession with intent to distribute heroin, imposed because he

violated 18 U.S.C. §§ 841(a) and (b)(1)(A)(i) and 846. He contends that the

district court erred in light of United States v. Booker, 543 U.S. ___, 125 S.Ct.

738, 160 L.Ed.2d 261 (2005), by sentencing him under a mandatory Guidelines

system.

As the government correctly concedes, there was Booker error, it was

preserved, and the government cannot show that the error was harmless.

Accordingly, Milien-Fong’s sentence is due to be vacated and the case remanded

for the limited purpose of re-sentencing in light of the Booker decision.

SENTENCE VACATED AND REMANDED.