UNITED STATES of America, Plaintiff-Appellee, v. Alfredo ESCOBAR-GAETA, Defendant-Appellant, 172 F. App'x 570

PER CURIAM: Having pleaded guilty, Alfredo Eseobar-Gaeta appeals his concurrent sentences for conspiracy to import more than 100 kilograms of marijuana, importation of more than 100 kilograms of marijuana, conspiracy to possess with intent to distribute more than 100 kilograms of marijuana, and possession with intent to distribute more than 100 kilograms of marijuana. Escobar-Gaeta argues that the sentences violate United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

We conclude that Escobar-Gaeta’s objections to his sentence in the district court preserved his arguments for appellate review. United States v. Olis, 429 F.3d 540, 544 (5th Cir.2005); United States v. Akpan, 407 F.3d 360, 375-76 (5th Cir.2005). When reviewing a Booker claim that has been preserved, we will ordinarily vacate and remand unless the Government can show beyond a reasonable doubt that the error was harmless. See United States v. Pineiro, 410 F.3d 282, 285 (5th Cir.2005). The imposition of a sentence based on facts exceeding those stipulated by Escobar-Gaeta when he pleaded guilty was erroneous. Id.

The Government’s brief does not address the issue of harmless error, and our review of the record reveals nothing to suggest that the Booker error did not influence the district court’s selection of a sentence. See id. Accordingly, Escobar-Gaeta’s sentences are VACATED and this matter is REMANDED for resentencing. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.