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Click here for the full text of this decision FACTS:The court affirmed Francisco Cruz’s conviction and sentence. The U.S. Supreme Court vacated and remanded for further consideration in light of United States v. Booker, 125 S.Ct. 738 (2005). Cruz had been convicted by a jury of importation and possession with intent to distribute 20 kilograms of cocaine. The jury was instructed that it must find beyond a reasonable doubt that “the substance was, in fact, cocaine and weighed 20 kilograms, more or less, 45 pounds, more or less.” Cruz was sentenced to 210 months’ imprisonment and five years’ supervised release. Cruz claims on remand that there is error under Booker because he “was sentenced under a Guidelines range greater than that authorized solely by the jury’s verdict, based upon a net-drug-weight finding made by the district court by only a preponderance of the evidence.” Further, Cruz asserts Booker error because he “was sentenced under the assumption of a mandatory Guidelines system that was held unconstitutional in Booker.” Cruz concedes that review is only for plain error, because he made no objection in the district court. HOLDING:The court vacates the judgment of sentence and remands for resentencing. The judgment of conviction is affirmed for the reasons expressed in the court’s initial opinion. An appellate court may not correct an error the defendant failed to raise in the district court unless there is 1. error, 2. that is plain, and 3. that affects substantial rights. The government claims there is no Booker error to satisfy the first prong, because “Cruz’s guidelines calculation did not include any enhancement based on extra-verdict facts.” His base offense level of 34 was identified because it is the level for drug offenses involving “at least 15KG but less than 50KG of Cocaine.” As the government points out, there was sufficient evidence from which the jury could determine, beyond a reasonable doubt, that the net weight exceeded the 15 kilograms necessary to invoke offense level 34. Therefore, the court holds that there is no Booker error based on any lack of sufficient findings by a jury beyond a reasonable doubt. But the court determines that Cruz should receive a remand on his claim that he was unconstitutionally sentenced under a guidelines regime that was understood to be mandatory, in contravention of Booker. The government claims that Cruz is barred from arguing now that sentencing under a mandatory guideline system is unconstitutional. The government cites United States v. Taylor, 409 F.3d 675 (5th Cir. 2005) (per curiam), in which the court held that, absent extraordinary circumstances, it would not consider Booker arguments raised for the first time in a petition for writ of certiorari. But the court holds that Cruz has sufficiently raised the issue. In applying Taylor to assertions of Booker error made for the first time in certiorari petitions, the court generally has applied the bar where the defendant has failed to raise any Booker- or Blakely-related issues before filing his certiorari petition. The court holds that Cruz did raise sentencing issues based on Blakely. Because Cruz had shown the likelihood that the error in his case increased his sentence, he had shown that the error seriously affects the fairness, integrity or public reputation of judicial proceedings. OPINION:Per curiam. Smith and Wiener, JJ.

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