United States v. Cardenas

* 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this opinion should not be published and is not precedent except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 circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 1, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50945
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO CARDENAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-85-ALL-DB
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Alejandro Cardenas appeals his convictions and 80-month
sentences for importing marijuana and possessing marijuana with
intent to distribute. Cardenas argues that the district court
abused its discretion by failing to order sua sponte a hearing to
determine whether he was competent to plead guilty. He has not
established that the district court had received information
creating a bona fide doubt about competency. Pate v. Robinson,

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No. 04-50945
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383 U.S. 375, 385 (1966); see also United States v. Davis, 61
F.3d 291, 304 (5th Cir. 1995).
Cardenas also contends that the district court erred in
sentencing him pursuant to the mandatory Guidelines regime held
unconstitutional in United States v. Booker, 543 U.S. 220, 125
S. Ct. 738, 764-65 (2005). The sentencing transcript is devoid
of evidence that the district court would have imposed the same
sentence under an advisory regime, and, therefore, the Government
has not borne its burden of establishing beyond a reasonable
doubt that the district court’s error was harmless. See United
States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
CONVICTION AFFIRMED; VACATED AND REMANDED FOR RESENTENCING.

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