USA v. Robert Lee Norman

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1168
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Lazaro Despaigne Borrero, * [UNPUBLISHED]
*
Appellant. *
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Submitted: August 11, 2005
Filed: October 11, 2005
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Before COLLOTON, HANSEN, and BENTON, Circuit Judges.
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PER CURIAM.
Lazaro Borrero appeals the sentence the district court imposed after he was
convicted of possessing cocaine base with intent to distribute. For reversal, he argues
that his sentence, imposed under a mandatory Guideline regime, violates United
States v. Booker, 125 S. Ct. 738 (2005).
The district court erred in sentencing Borrero under a mandatory Guidelines
regime, see id. at 756-57 (holding Guidelines to be only advisory), and Borrero
preserved this non-constitutional error at sentencing. We thus review for harmless
error. See id. at 769. We are left with grave doubt as to whether the error had

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"substantial influence" on the outcome of the proceeding. See Kotteakos v. United
States, 328 U.S. 750, 765 (1946). Borrero was sentenced at the bottom of the
applicable Guidelines range, and the district court’s comments suggest that the
sentence might have been different had the Guidelines been treated as advisory. See
United States v. Haidley, 400 F.3d 642, 644-45 (8th Cir. 2005). Accordingly, we
remand for resentencing.
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