UNITED STATES of America, Plaintiff-Appellee, v. Chaska J. CARRILLO, Defendant-Appellant, 143 F. App'x 711

ORDER Chaska Carrillo pleaded guilty to distributing cocaine base in violation of 21 U.S.C. § 841(a)(1) and was sentenced to 151 months’ imprisonment and three years’ supervised release. He now argues that he is entitled to resentencing in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Schlifer, 403 F.3d 849 (2005).

Like the appellant in Schlifer, Carrillo argued in the district court that increasing his offense level under U.S.S.G. § 4B1.1 (establishing elevated offense levels for “career offenders”) without submitting the matter to a jury violated his rights under the Sixth Amendment. We rejected that argument on the merits in Schlifer, 403 F.3d at 853, but nonetheless accepted it as sufficient to “preserve” the appellant’s right to challenge his sentence under the remedial holding in Booker, id. at 854. There is error in every sentence imposed under the old mandatory guidelines regime. Schlifer, 403 F.3d at 853.

Because Carrillo adequately preserved an objection, we must vacate the sentence unless the government can show that the error was harmless. Id. at 854. The government concedes that it cannot meet that burden. Accordingly, we VACATE Carrillo’s sentence and REMAND the case for resentencing.