United States v. Altato-Pues

* 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this opinion should not be published and is not precedent except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. 04-41682
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO ALTATO-PUES, also known as Lucho
Gatica-Rodriguez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1770-ALL
--------------------
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Antonio Altato-Pues (Altato) appeals the sentence imposed
upon his guilty-plea conviction for transporting illegal aliens
via motor vehicle into the United States. See 8 U.S.C. § 1324.
Altato argues that under United States v. Booker, 543 U.S. 220
(2005), the district court was not authorized to increase his
sentence based on its factual finding that he recklessly
endangered the lives of his alien passengers. Both the

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No. 04-41682
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Government and Altato contest whether Altato admitted the facts
supporting the reckless endangerment adjustment. However,
neither party provided this court with a transcript of the
rearraignment proceeding. Absent the transcript, this court
cannot review this claim. See e.g., United States v. Holmes, 406
F.3d 337, 366 & n.49 (5th Cir.), cert. denied, 126 S. Ct. 375
(2005).
The district court, however, committed “Fanfan” error by
sentencing Altato pursuant to a mandatory guidelines scheme. See
United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).
The Government concedes that Altato preserved his Fanfan claim.
As such, this court reviews the claim for harmless error. See
Walters, 418 F.3d at 464. This court has rejected the argument
that a Fanfan error is structural. See Walters, 418 F.3d at 463.
There is no indication in the record that the district court
would have imposed the same sentence had the guidelines been
advisory rather than mandatory. The Government has not satisfied
its burden of showing that the district court’s Fanfan error was
harmless beyond a reasonable doubt. See Walters, 418 F.3d at
463-64. Accordingly, we vacate the sentence and remand for
resentencing in accordance with Booker.
This court need not address at this time Altato’s remaining
argument challenging the district court’s denial of his request
for a downward departure. See United States v. Akpan, 407 F.3d
360, 377 n.62 (5th Cir. 2005).

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No. 04-41682
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SENTENCE VACATED AND REMANDED.

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