UNITED STATES of America, Plaintiff-Appellee, v. Reynaldo GARCIA, also known as Chucky, Defendant-Appellant, 416 F.3d 440

PER CURIAM: Reynaldo Garcia appeals his sentence following his guilty-plea to conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). The district court calculated Garcia’s base offense level based on relevant conduct involving 48,651.7 kilograms of marijuana. Garcia argues, inter alia, that the district court’s drug quantity finding violated the Sixth Amendment and United States v. Booker because he did not plea or admit to the relevant conduct and it was not found by a jury.

In Booker, the Supreme Court held that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker struck down 18 U.S.C. § 3553(b)(1), thus rendering the Guidelines advisory. Garcia did not expressly object in the district court based on Booker or the Sixth Amendment. Consequently, our review is for plain error only.

We may correct an error that the appellant failed to raise in the district court only if there is “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” If these conditions are met, we may exercise our discretion to notice a forfeited error only if “the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” The first two prongs of the plain error test are clearly met in this case.

In order to satisfy the third prong, Garcia must demonstrate that “the sentencing judge— sentencing under an advisory scheme rather than a mandatory one — would have reached a significantly different result.” Although we have held that an appellant has a “difficult burden to establish that the error affected his substantial rights,” we are persuaded that Garcia has done so in the present case. At Garcia’s sentencing, the court discussed at length the difficulties of long prison sentences and their affect on families.

The court noted that Garcia was a husband and father of small children, and opined: “You [Garcia] are a young man and I would prefer to sentence you to a lesser sentence than required under the guidelines but I’m going to follow the law and assess punishment appropriately based on the circumstances that are presented before me.” The court then proceeded to sentence Garcia to 262 months’ imprisonment — at the very bottom of the applicable Guidelines range. We have held that this type of evidence indicates a likelihood that the district court would have imposed a lesser sentence under an advisory Guidelines regime.

Furthermore, we find that Garcia has carried his burden under the fourth prong of the plain error test. Accordingly, Garcia’s sentence must be vacated and remanded for resentencing. Because the district court’s drug quantity determination requires resentencing, we do not reach Garcia’s other claimed sentencing errors and leave to the district court’s discretion whether it will impose the same sentence with the same departures or enhancements. Garcia’s argument that a greater sentence at resentenc-ing would implicate ex post facto concerns is premature, and we do not address it.

VACATED AND REMANDED. . — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . Id. at 756. . Id. at 764-65. . See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005). . United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (internal quotation marks and citations omitted). . Id. (internal quotation marks and citations omitted). . See Mares, 402 F.3d at 520-21. . Id. at 521. . United States v. Pennell, 409 F.3d 240, 245 (5th Cir.2005). . See id. .

See id. (sentencing error that results in a dramatic increase in the recommended imprisonment range "seriously affects the fairness, integrity, or public reputation of the judicial proceedings” (quoting United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir.2002))). . See United States v. Akpan, 407 F.3d 360, 377 n. 62 (5th Cir.2005). . See Amar v. Whitley, 100 F.3d 22, 23 (5th Cir.1996) (finding that we lack the "jurisdiction and the judicial resources to issue an advisory opinion”).