United States v. Humberto Garcia-Toscano

388 F. App'x 414

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 27, 2010
• Docket: 09-40420
• Status: Unpublished

Opinion

PER CURIAM: *

Humberto Garcia-Toscana (Garcia) challenges the 360-month sentence he received following his conviction by jury for conspiracy to possess with the intent to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 846, possession with the intent to distribute more than 100 but less than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841(a), money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A), engaging in monetary transactions in property derived from specified unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(B), and engaging in monetary transactions in property derived from specified unlawful activity, in violation of 18 U.S.C. § 1957. Garcia argues that his sentence is invalid because it was imposed under the formerly mandatory version of the Guidelines, based on facts that were neither admitted by him nor found by a jury. He also contends that the district court erred in enunciating an alternate sentence.

Garcia’s assertion of sentencing error is meritorious. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He preserved this error by raising an objection to his sentence grounded in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See United States v. Garza, 429 F.3d 165, (5th Cir.2005). When, as is the case here, a Booker error has been preserved in the district court, we “will ordinarily vacate the sentence and remand, unless [this court] can say the error is harmless under Rule 52(a) of the Federal Rules of Criminal Procedure.” United States v. Pineiro, 410 F.3d 282, 284 (5th Cir.2005) (internal quotation marks and citation omitted). The Government has not met its “arduous” burden of demonstrating “beyond a reasonable doubt that the Sixth Amendment Booker error did not affect the sentence that [Garcia] received.” Id. at 285, 287. Further, it would not be appropriate for us to impose the alternate sentence articulated by the district court. See United States v. Story, 439 F.3d 226, 233 (5th Cir.2006); United States v. Adair, 436 F.3d 520, 524, 527-29 (5th Cir.2006). Consequently, Garcia’s sentence is VACATED, and the case is REMANDED FOR RESENTENCING. His convictions are AFFIRMED.

* 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.