United States v. Caldwell

* 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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 26, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41662
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC CALDWELL,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
No. 2:04-CR-141-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Isaac Caldwell appeals his 57-month guilty-plea sentence for
possession of a firearm by a convicted felon, 18 U.S.C. §§ 922-
(g)(1) and 924(a)(2). He argues that his sentence must be vacated
and his case remanded for resentencing because the district court
committed reversible error by sentencing him pursuant to a manda-

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No. 04-41662
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tory sentencing guidelines regime. Caldwell’s objection pursuant
to Blakely v. Washington, 542 U.S. 296 (2004), was sufficient to
preserve this issue for appeal. See United States v. Rodri-
guez-Mesa, 443 F.3d 397, 404 (5th Cir. 2006).
The sentence pursuant to a mandatory guidelines scheme con-
stitutes Fanfan error. See United States v. Booker, 543 U.S. 220
(2005); United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.
2005). The government thus bears the burden of proving beyond a
reasonable doubt that the district court would have imposed the
same sentence had the guidelines been advisory only. See Walters,
418 F.3d at 464. If the government cannot show that the error was
harmless, we ordinarily will vacate and remand for resentencing.
Id. at 463.
The government cannot meet its burden. See id. at 464-66.
Because the Fanfan error requires remand for resentencing, we need
not address Caldwell’s remaining challenge to his sentence. See
United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
Accordingly, we vacate Caldwell’s sentence and remand for
resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.

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