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Click here for the full text of this decision FACTS:In 2003, Fermin Zamora-Vallejo (Zamora) was sentenced to eight months in prison and two years of supervised release for unlawfully transporting aliens. After serving his prison sentence, Zamora was deported. In October 2004, while still on supervised release, he pleaded guilty to being in the United States illegally after having been deported, in violation of 8 U.S.C. �1326 (a) and (b). The terms of Zamora’s plea with the government included agreements to be sentenced under the applicable sentencing guidelines and to waive any right to have sentencing facts charged in the indictment, found by a jury or found beyond a reasonable doubt. Under the 2004 edition of the Sentencing Guidelines Manual, the U.S. Probation Office drafted a Pre-Sentence Report that set Zamora’s base offense level at eight. It then added 16 levels, because of his earlier deportation following a felony conviction for transporting aliens. After a two-point reduction for acceptance of responsibility, Zamora’s total offense level was 22. With a criminal history category of III, the sentence range under the guidelines was 51 to 63 months. Zamora objected to the constitutionality of the 16-level enhancement and the 20-year maximum of �1326 (b), citing Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000), but the objections were overruled. After reducing the total offense level by three to 19 (rendering the guidelines range 37 to 46 months) on its own initiative, the district court sentenced Zamora to 37 months for the �1326 violation. At the sentencing hearing, Zamora also pled true to violating his supervised release by having returned to this country after deportation. The district court then revoked the supervised release and sentenced him to 11 months in prison, with that sentence to run consecutively to the 37-month �1326 sentence. At the hearing, the court stated it believed the total sentence was “fair and appropriate sentencing under the applicable law after considering all the relevant considerations.” Zamora timely appealed. HOLDING:Vacated and remanded for sentencing. The court examined two issues: First, whether Zamora’s plea agreement barred his appeal; and second, whether the district court’s application of the U.S. Sentencing Guidelines constituted harmful error under the Supreme Court’s Booker decision and this court’s precedent. The court found that under United States v. Reyes-Celestino, 443 F.3d 451, 453 (5th Cir. 2006), a defendant who agrees to be sentenced pursuant to the applicable Sentencing Guidelines is not precluded from raising on appeal an alleged Fanfan error. Thus, the court stated, Zamora was free to challenge his sentence. The court applied a harmless error standard to the Fanfan error. In a footnote, the court explained that a Fanfan error, one of two types of error addressed in United States v. Booker, 543 U.S. 220 (2005), occurs when a district court applies mandatory guidelines to enhance a defendant’s sentence absent any Sixth Amendment Booker error. Under this standard, the court stated that the government must carry the “arduous” burden of proving “beyond a reasonable doubt that the district court would not have sentenced [the defendant] differently had it acted under an advisory Guidelines regime,” as opposed to a mandatory regime. According to the court, the government offered two items of evidence to show that the Fanfan error was harmless: “First, the district court ordered Zamora to serve his two sentences consecutively. Second, the court stated on the record its belief that the entire sentence was”fair and appropriate.’” Examining the government’s first point, the court inquired whether Zamora’s two crimes were “factually related” such that the court was persuaded the “default rule” of consecutive punishment for unrelated crimes does not apply. The court found that the two sentences punished factually unrelated crimes. Addressing the government’s second point, the court concluded that the lower court’s statement was ambiguous in the context of the sentencing proceeding and insufficient to meet the government’s burden of showing that the Fanfan error was harmless. OPINION:Per curiam; Jolly, Davis and Benavides, J.J.

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