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holding that the doctrine of sovereign immunity "does not bar a suit such as this which is challenging alleged unconstitutional and unauthorized conduct by a federal officer"
Summary of this case from Brown v. HartmanOpinion
No. 03-51087 Summary Calendar.
January 6, 2006.
Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for U.S.
Judy Fulmer Madewell, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM and DAVIS, Circuit Judges.
This appeal is being decided by a quorum due to the retirement of Judge Pickering. 28 U.S.C. § 46(d).
This court affirmed the judgment of conviction and sentence of Juan Belen Castaneda-Barrientos. United States v. Castaneda-Barrientos, 108 Fed.Appx. 878 (5th Cir. 2004) (unpublished). The Supreme Court vacated and remanded for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Castaneda-Barrientos v. United States, 543 U.S. 1113, 125 S.Ct. 1077, 160 L.Ed.2d 1054 (2005). We requested and received supplemental letter briefs addressing the impact of Booker.
Castaneda argues that his sentence is unconstitutional under Booker because the district court imposed his sentence based on a factual finding that his prior conviction for transporting illegal aliens was an alien smuggling offense "for profit." The Government concedes Booker error and that the error is not harmless. However, the Government argues the issue was not preserved in the district court in order to be subject to harmless-error review.
A defendant is not required to specifically reference the Sixth Amendment, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to preserve a Booker error. United States v. Olis, 429 F.3d 540, 543-44 (5th Cir. 2005). If a defendant voices repeated objections sufficient to apprise the sentencing court that he is raising a constitutional claim with respect to judicial factfinding in the sentencing process, the error is preserved. Id. Castaneda referenced Apprendi and specifically stated that he was challenging the constitutionality of the court's fact-finding regarding his prior conviction for an alien smuggling offense. Thus, the issue is preserved.
Because the Government concedes a Sixth Amendment error in violation of Booker that is not harmless, the judgment of conviction is REINSTATED, the sentence is VACATED, and the matter is REMANDED for resentencing.