United States v. Milien-Fong

140 F. App'x 918

Opinion

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)® 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.