CA5: Preserved Booker claim surviving harmless error analysis

U.S. v. Pineiro is an opinion after a grant- vacate- and- remand from the Supreme Court in light of Booker. Pineiro had objected at sentencing to enhancement for drug quantity based on the presentence report rather than the conviction, arguing that this would violate Apprendi. While his Fifth Circuit appeal was pending, Blakeley was decided, and the Fifth Circuit asked for additional briefs but then rejected Pineiro’s Sixth Amendment arguments. He petitioned for certiorari, and the Supreme Court remanded in light of Booker.

Pineiro had preserved the issue fully, and the government argued harmless error. After a footnote rejecting an argument that harmless error analysis would not apply, the opinion rejects a series of harmless error arguments by the government—that the judge said he saw no reason to depart from the guidelines (rejected because this simply meant he believed himself bound by the guidelines), that there is nothing in the record suggesting there would have been a lower sentence under a non-mandatory scheme (rejected because this inverts the burden—the absence in the record hurt rather than helped the government), and finally the government’s attempts to rebut Pineiro’s argument that the sentence would have been different.  The court reversed for a new sentencing.