United States v. Romero

* 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this opinion should not be published and is not precedent except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
February 3, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20999
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR RENE ROMERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-243-ALL
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Oscar Rene Romero appeals the 88-month sentence he received
following his conviction by a jury of possessing with the intent
to distribute and importation of more than 500 grams of cocaine,
in violation of 21 U.S.C. §§ 841, 952, and 960. He contends,
inter alia, that the district court erred in sentencing him
pursuant to the mandatory Guidelines regime held unconstitutional
in United States v. Booker, 125 S. Ct. 738, 764-65 (2005). The
sentencing transcript is devoid of evidence that the district

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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. Garza, 429 F.3d
165, 170 (5th Cir. 2005); United States v. Walters, 418 F.3d 461,
464 (5th Cir. 2005). We further hold that Romero’s remaining
contentions, all of which arise from the jury’s determination of
the amount of drugs involved in his offense, are unavailing. As
to those contentions, the judgment of the district court is
AFFIRMED.
Accordingly, Romero’s sentence is VACATED, and the case is
REMANDED for further proceedings. See id. at 466.
AFFIRMED IN PART; SENTENCE VACATED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS.

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